SCTSPRINT3

A McE v. THE REVEREND JOSEPH HENDRON AND OTHERS


EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Osborne

Lord Clarke

Lord Marnoch

[2007] CSIH 27

A1523/00

OPINION OF LORD OSBORNE

in

RECLAIMING MOTION

in the cause

A. McE. (A.P.)

Pursuer and Respondent;

against

(FIRST) THE REVEREND JOSEPH HENDRON and OTHERS

Defenders and Reclaimers:

_______

Act: McEachran, Q.C., Miss Stirling; Drummond Miller, W.S. (for Ross Harper, Glasgow) (Pursuer and Respondent)

Alt: Clancy, Q.C., E G Mackenzie; Burness, W.S. (for McSparran & McCormick, Glasgow) (First to Eighth Defenders and Reclaimers)

Cullen, Q.C., Smith; Solicitor to the Scottish Executive (Eighteenth Defender and Reclaimer)

11 April 2007

The background circumstances

[1] The pursuer in this action was born on 15 September 1953. He concludes for payment by the defenders jointly and severally or severally to him of the sum of £100,000, with interest, as damages for personal injuries sustained in consequence of events which are said to have occurred while the pursuer was a resident at St. Ninian's Approved or List D School, Gartmore House, Gartmore, Stirlingshire. The pursuer convened a total of eighteen defenders. The first to seventh named defenders are individuals convened as representing the Congregation or Order of the de La Salle Brothers. The eighth named defender is designed as the Congregation of the de La Salle Brothers. The ninth to fourteenth named defenders were persons convened as representing the Managers of St. Ninian's School, Gartmore House, Gartmore, Stirlingshire. The fifteenth named defender was designed as "The Managers of St. Ninian's School". The sixteenth named defender is an individual designed as, in religion, Brother Benedict. The seventeenth named defender was Stirling Council. The eighteenth named defender is the Lord Advocate, as representing the statutory successors to the Social Work Services Group, and the Scottish Education Department. The summons was signetted on 8 May 2000.

[2] By an interlocutor of the court, dated 29 March 2006, the ninth to fifteenth named defenders were, of consent, assoilzied from the conclusions of the summons. The sixteenth named defender did not lodge defences. In consequence, on 8 June 2004, the court decerned against him in absence for payment to the pursuer of the sum of £50,000, with interest at an appropriate rate. In terms of a Joint Minute, No. 38 of process, by an interlocutor dated 8 October 2003, the seventeenth named defender was assoilzied from the conclusions of the summons. Accordingly, only the first to eighth named defenders and the eighteenth named defender remain before the court.

[3] The pursuer's pleadings are extensive, extending to some 99 pages. I shall not attempt to summarise them here. Suffice it to say that the pursuer alleges that he was the victim of damaging and inappropriate conduct at the hands of the staff of St. Ninian's Approved School, in consequence of which he claims to have suffered both physical and psychological injury. The physical abuse alleged is of a serious nature, including deliberate assaults by punching and kicking on all parts of his body, as well as force feeding of inter alia the pursuer's "own bodily fluids", being made to suck on bars of carbolic soap, and being made to stand in a cold shower in darkness. In outline, his case against the first to eighth named defenders is based on averments to the effect that members of the de La Salle Order were sent to work at the Approved School. Most of the teachers in the school were members of that Order. The headmaster, a Brother Thadius, was a member of the Order. So far as the eighteenth named defender is concerned, the pursuer's case is based upon averments in Condescendence I to the effect that he represents the Scottish Ministers, who are the statutory successors to the Secretary of State for Scotland, by virtue of section 53 of the Scotland Act 1998

"in respect of certain functions including approved schools and list D schools formerly performed by the Scottish Education Department and the Social Work Service Group (S.W.S.G.), on behalf of the Secretary of State."

The pursuer avers that the certificate of approval of St. Ninian's School was issued by the Scottish Education Department prior to 7 June 1963. The pursuer also avers in Condescendence V that, on 20 June 2003, the sixteenth named defender was convicted in the High Court of Justiciary in Edinburgh of assaulting the pursuer on various occasions between 7 June 1963 and 31 December 1964, by dragging him bodily from his bed, pulling him along corridors and compelling him to take a cold shower, forcibly feeding him with sago and compelling him to eat his own vomit, and repeatedly punching and kicking him on the body and striking him with knotted leather or rubber laces, all to his injury. He also avers that the sixteenth named defender was convicted of assaulting other children in the school and of certain sexual offences. In Condescendence VII, the pursuer sets forth the basis of his case against the first to eighth named defenders. In Condescendence VIII the pursuer makes a case based upon the alleged breach of statutory duties of the headmaster of the school in question. In Condescendence X the pursuer makes a case against those for whose wrongdoing the eighteenth named defender is said to be liable. In Condescendence XI the pursuer specifies the nature and extent of the consequences of the acts and omissions which are the basis of his case. In Condescendence XII, averments are made relating to the application of the provisions of the Prescription and Limitation (Scotland) Act 1973 to the circumstances of this case. It should also be mentioned that all of the defenders remaining before the court have tabled a number of pleas-in-law, including challenges to the relevance of the pursuer's case against them and also pleas to the effect that his case is time-barred in terms of the 1973 Act.

[4] By interlocutor of 2 October 2002, the case was appointed to the Procedure Roll, but was not heard on that Roll until 11 June 2004, on account of amendment and other procedure taking place between those dates. The Procedure Roll debate commenced on 11 June 2004, but was interrupted by further amendment procedure, avizandum ultimately being made by the Lord Ordinary on 13 December 2004. On 13 September 2005, the Lord Ordinary, having resumed consideration of the cause pronounced an interlocutor in, inter alia, the following terms:

"(1) Repels the pursuer's first and second pleas-in-law only so far as relating to breach of statutory duty, and excludes from probation the averments in Articles 8 and 9 of Condescendence.

(2) Excludes from probation the following averments as being irrelevant and/or lacking in specification,

(a) at page 11B-C: 'some of the staff who worked at the school were

employed by the eighteenth defender's statutory predecessors'

(b) at page 11C-D: the passage relating to the school managers'

insurance arrangements, inserted by the pursuer's Answers number 61 of process beginning with the words 'With reference to the averments introduced by the tenth to fifteenth defenders ... ' and ending with the words 'called upon to admit or deny the existence of insurance as a matter within their knowledge.'

(c) at page 37E to 38A: 'The pursuer believes and avers that the

authorities including the SED and the social workers knew what was happening at the school prior to 1963.' together with the related averment at page 61C: 'It had a duty to take reasonable care not to send boys such as the pursuer to a school where they were likely to be assaulted.'

(d) the passage beginning at page 61B with the words 'had a duty to

inspect the school from time to time, and at least every 6 months' to and including the words 'placed out on licence as soon as possible. It' (at page 61C-D).

(e) the passage beginning at page 61D-E with the words 'After

1 November 1963, the Secretary of State had a duty' to and including the words 'directions had not been complied with' (at page 62B).

(3) Allows a preliminary proof before answer on the question of the status and circumstances of the school managers, including the terms and conditions of their appointment; whether they were acting as individuals or whether they constituted some sort of unincorporated association; the identity of those managers in post during 1963 to 1966; and whether the managers were employers such as they would be vicariously liable for the acts of the abusers referred to on record and Assigns day of at 10 a.m. as a diet thereon; grants diligence for the citation of witnesses and havers.

(4) Allows a preliminary proof before answer on time-bar issues in terms of both section 17(2)(b) and section 19A to be conducted on the same basis as that outlined in paragraph [18] of B v Murray 2004 S.L.T. 967, namely that the proof should proceed on the basis that the pursuer's averments about what happened to him at St. Ninian's should be taken pro veritate, and the issues to be judged on a preliminary basis should be directed to whether or not the pursuer can satisfy the terms of section 17(2)(b) of the Prescription and Limitation (Scotland) Act 1973, failing which whether the court should exercise its discretion in terms of section 19A of the aforementioned Act, to take place after the preliminary proof referred to in the foregoing paragraph, Assigns day of at 10 a.m. as a diet thereon; grants diligence for the citation of witnesses and havers. ... ".

Against that interlocutor, the pursuer, the first to eighth named defenders and the eighteenth named defender have all reclaimed.

The grounds of appeal

[5] The grounds of appeal for the first to eighth named defenders are in the following terms:

"1. The Lord Ordinary erred in failing to sustain the first plea-in-law for the first to eighth defenders relating to time-bar. In particular the Lord Ordinary erred:

(1) in holding (at paragraphs [130] to [135]) that the relevancy and

specification of the pursuer's averments in Article 12 of Condescendence (at pages 70B to 78C) relating to section 17(2)(b) of the Prescription and Limitation (Scotland) Act 1973 could not be determined without enquiring into the facts. The Lord Ordinary ought to have held that these averments were irrelevant and lacking in specification in that (a) they are confused, deficient, contradictory and lacking in candour and (b) they disclose that for a period of more than three years before the action was commenced the pursuer was either aware, or it would have been reasonably practicable for him to have become aware, of the statutory facts set out in section 17(2)(b) of the 1973 Act

(2) In holding (at paragraph [136]) that the pursuer's averments in Article

12 of Condescendence (at pages 70B to 78C) relating to section 19A of the Prescription and Limitation (Scotland) Act 1973 entitled him to a preliminary proof on whether the court should, in any event, exercise its equitable power to allow the action to proceed. The Lord Ordinary ought to have held that these averments were irrelevant and lacking in specification in that they are confused, deficient, contradictory and lacking in candour.

2. The Lord Ordinary erred in failing to sustain the second plea-in-law for the first to eighth defenders. In particular the Lord Ordinary erred:

(1) In holding that the pursuer has pled a relevant case based on the

vicarious liability of a principal for an agent, the correct position being that the pursuer has not pled that that relationship existed or how it came into being.

(2) In respect that the essence of an agency relationship is that the agent

expressly or impliedly consents to act so as to affect the principal's relationships, for failing to notice that that feature is not present or pled. Membership of the Order does not involve a contract between the member and the Order. The constitution of a voluntary association is a contract between the members.

(3) In holding that voluntary associations are vicariously liable for delicts

committed by their members qua agents of the association. This proposition is un-supported by authority and is not supported by the cases mentioned in the Stair Encyclopaedia, volume 2, paragraph 84 cited by the Lord Ordinary.

(4) In holding that principals are vicariously liable for the delicts of their

agents on the same basis as employers are vicariously liable for their employees.

(5) In holding that issues concerning enforcement and rights of relief are

'matters for tactics, evidence and submission', the proper analysis being that they are matters of relevancy.

(6) In holding that the ratio in Lister v Headley Hall [2002] 1 A.C. 215 is

applicable to the circumstances of this case. Lister is concerned with an employer/employee relationship in the true sense. It is factually and legally distinguishable from this case on the grounds that the defendants in Lister owned and operated the school where the abuse occurred. They assumed legal responsibility for the children and in turn delegated that responsibility to their abusive employee. In this case the Order were not legally responsible for the care and welfare of the children in any manner comparable to the defendants in Lister.

3. The Lord Ordinary erred by ordering a preliminary proof in respect of 'the status of the school managers'. The existence of that body as a legal personality distinct from the individual managers from time to time is recognised by the primary and secondary legislation governing their activities and duties."

[6] The grounds of appeal for the eighteenth defender are in the following terms:

"1. Direct Liability

1.1 The Lord Ordinary erred in paragraphs 102 to 104 of her Opinion.

1.2 The pursuer relies upon certain information having come to the attention of the Scottish Education Department but gives no fair notice of the case against the Department. It is averred inter alia that the Department noted that concerns regarding verminous heads, blows and the physical care of the boys ought to be kept under review. These averments are insufficient to justify the allegation that the SED knew that boys in the school were being regularly and routinely assaulted. There is no adequate factual basis averred for the duty to take reasonable care to remove boys such as the pursuer from the School. In any event, there are no averments that the Department failed to respond to the information communicated to it. It is not averred that the Department failed to keep matters under review. It is not averred that the Department's response was inadequate. There are accordingly no relevant averments of breach of duty on the part of the Department.

1.3 The Lord Ordinary's reasoning in paragraph 104 based on Hughes v The Lord Advocate 1963 S.C. (H.L.) 31 is misconceived. The question raised by the pursuer's averments in the present case is not whether the precise form of harm would have been foreseeable, but the logically prior question as to whether the pursuer has averred sufficient factual basis for the existence of a duty to remove children from the School. The Lord Ordinary has not addressed her mind to this prior question. Her approach does not address the true question: whether there is a sufficient basis in the pursuer's factual averments for the extremely wide duty alleged to have been owed by the Scottish Education Department.

2. Vicarious Liability

2.1 The Lord Ordinary erred in paragraphs 107 to 111.

2.2 The pursuer has inconsistent averments about who employed carers such as Brother Benedict. At 10B the averment is that 'They' (i.e. the ninth to fifteenth defenders) were responsible for the appointment, suspension and dismissal of staff. At 11B the pursuer avers that 'Some of the staff who worked at the school were employed by the eighteenth defenders' (sic) statutory predecessors'. There are no specific averments of which members of staff were employed by those for whom this defender is liable and, accordingly, the Lord Ordinary excluded the averment at 11B from probation (paragraph 140 of the Opinion).

2.3 The Lord Ordinary's conclusion at paragraph 111, entertaining the possibility of vicarious liability 'If the SED were to be regarded as being in some way involved in the employment of a monk such as Brother Benedict', is speculative and does not reflect any averment on Record. It may reflect the vague and legally unprecedented contention for the pursuer, recorded at paragraph 39 of the Opinion, that there was 'a very unusual quasi-employment situation operating at the school'. This defender is entitled to fair notice of any case that those for whom he is responsible were involved in the engagement of specific members of staff to such an extent that they can be vicariously liable for the actions of those members of staff. The exclusion of the unspecific averment at 11B simply highlights the need for more specification from the pursuer.

3. Non-delegable duty of care

3.1 The Lord Ordinary erred in law in paragraphs 112 to 119 of the Opinion.

3.2 The Lord Ordinary refers to Commonwealth authority to 'show that the concept of non-delegable duty of care may be highly relevant in the circumstances of abuse of staff by inmates at residential establishments' but in each of the cases referred to the court decided against a duty of care of the scope averred in this case by the pursuer in the crucial amendments recorded in paragraph 16 of the Opinion. Such duty would, in effect, impose strict liability for criminal acts of carers inflicted on children.

4. Time-bar

4.1 The Lord Ordinary erred in law in paragraphs 130 to 138.

4.2 The Lord Ordinary concluded at paragraph 134 that the pursuer's averments are, on one view, confused and at times possibly self-contradictory, stating that this may be attributable to a lack of candour. Both the style of pleading and the general state of confusion are similar to that in B v Murray 2004 S.L.T. 967 in which the case for delayed commencement of the time-bar was held to be irrelevant and a preliminary proof restricted to section 19A. This defender is entitled to fair notice of the facts as they were known to the pursuer and to a clear explanation of the basis on which (a) he seeks to defer the commencement of the time-bar period and (b) rely on section 19A."

[7] The grounds of appeal for the pursuer are in the following terms:

"Allowance of a preliminary proof on time-bar rather than a proof at large

The Lord Ordinary erred in paragraph 137 of her Opinion by allowing a preliminary proof on time-bar, rather than a proof at large. The matters to be raised at the preliminary proof are not matters wholly distinct from the merits of the action. The pursuer would require to give evidence of the abuse he suffered, and why that prevented him from raising an action within three years of reaching majority. He would require to give evidence of the abuse and its effects on him again at any subsequent proof. Different Lords Ordinary might have different views on the same evidence. If the pursuer were required to proceed to preliminary proof and then to a proof on the merits, there would be repetition of the evidence. There would be further delay and expense. Noble v De Boer 2004 S.C. 549, McCafferty v McCabe (1898) 25 R. 872, Thomson v Newey & Eyre Limited 2005 S.C. 373, Burrows Machines Limited v Davie Crawford & Partners 1976 S.L.T. (Notes) 35, McGhee v British Telecommunications plc (20 December 1995) (Lord Hamilton, unreported), Woodland v The Advocate General 2005 S.C.L.R. 163, Ablett v Devon County Council (4 December 2000) (Sedley, L.J.; Court of Appeal, unreported)."

Submissions of junior counsel for the first to eighth defenders

[8] The motion of the first to eighth defenders was that the Lord Ordinary's interlocutor of 13 September 2005 should be recalled. Pleas-in-law numbers 1 and 2 for these defenders should be sustained, with the result that the action, so far as directed against them, should be dismissed.

[9] Counsel explained that his submissions would fall into a number of distinct chapters. The first of these related to the issue of limitation. His submission was that the action was time-barred for the reasons disclosed in paragraphs 1 to 3 of these defenders' written submissions. It was contended that the pursuer's pleadings relating to section 17(2)(b) of the 1973 Act were irrelevant. They did not make sense. To the extent that it was possible to make sense of those averments, it was plain that, for a period of more than three years before the commencement of the action, the pursuer had been aware of the matters specified in section 17(2)(b) of the 1973 Act. The sub-paragraphs (i), (ii) and (iii) related to the seriousness of the injuries, causation, and the responsibility of the defender. It was of significance that section 17(3) required that, in the computation of the period specified in subsection (2), there should be disregarded "any time during which the person who sustained the injuries was under legal disability by reason of nonage or unsoundness of mind." The period or periods to be disregarded were thus confined to the periods specified there.

[10] It would be necessary for the court to consider the decision in Carnegie v The Lord Advocate 2001 S.C. 802. For the present purposes what was said by Lord Johnston in paragraphs 12 to 22 was important. In connection with the matter referred to in section 17(2)(b)(i) the averments of the pursuer at page 76C and following were of significance. They were, to an extent, a response to what was averred at page 87C-D. The undisputed situation was that a social enquiry report in respect of an appearance by the pursuer in Alloa Sheriff Court on 30 September 1996 had been prepared. In that Report, it was narrated:

"Mr. (McE) ... described the bizarre and awesome punishment regime which he remembers as having been in force at the time. Mr. (McE) remained there for three years."

That was a reference to Gartmore School and it demonstrated that, at the time of the preparation of that Report, the pursuer had had an awareness of the relevant matter. The present action had been served on the first to eighth defenders on 18 May 2000. Accordingly, the pursuer had been aware of those matters for a period in excess of three years prior to the raising of this action. Counsel accepted that section 17(2)(b)(i) could accommodate a genuine case of suppression of memory, but this case was not that. The averments just referred to were inconsistent with any such situation.

[11] Furthermore, counsel submitted that, in his averments, the pursuer did not consider or deal with the problem created by the fact that some of the conduct complained of might properly be seen as reasonable chastisement. However, he accepted that the pursuer had averred that he was the victim of assaults. Something which was an assault could not simultaneously be reasonable chastisement.

[12] The pursuer's averments, it was submitted, were so confused, deficient, contradictory and lacking in candour as to be irrelevant. That was true of the averments relating to section 17(2)(b) of the 1973 Act. The major contradiction lay in the situation in which the pursuer averred a continuing awareness of the alleged assaults, but at the same time, appeared to rely on suppressed memory. Details of the alleged inconsistencies and shortcomings in the pursuer's pleadings were to be found in paragraph 6 of these defenders' written submissions. However, counsel accepted that, in terms of section 17(2)(b)(i) of the 1973 Act, it was possible to have an awareness at a particular time of injuries which were trivial, but that awareness of the serious nature of the injuries in reality might emerge only at some later stage. In this connection, reliance was placed on Webb v B.P. Petroleum Development Limited 1988 S.L.T. 775, at page 776. He also relied on Cowan v Toffolo Jackson & Company Limited 1998 S.L.T. 1000, at page 1002. Reference was also made to Agnew v Scot Lithgow Limited (No. 2) 2003 S.C. 448, at page 452. The latter case showed that what might be called constructive awareness outwith the triennium had to be excluded. As pointed out in paragraph 6(6) of the written submissions, the pursuer's averments about the allegedly disabling effects of the alleged abuse were contradictory and irrelevant. Even though he might have been ill and, in consequence, inactive, that circumstance did not affect the application of section 17 of the 1973 Act.

[13] However, the nature of the pursuer's case involved concern with actual awareness. The case was not concerned with constructive awareness. Furthermore, the pursuer did not make a case of partial, but insufficient actual awareness. It was these defenders' position, as set out in paragraph 7 of the written submissions, that the pursuer's averments were irrelevant because there was an inescapable inference that he had had actual awareness of the statutory matters from a date prior to the commencement of the triennium. Thus the test in section 17(2)(b) could not be met by the pursuer. In this context, counsel relied on B v Murray 2004 S.L.T. 967, at pages 969 to 970.

[14] If it were alleged that the pursuer had suffered both physical injuries at an early date and later psychological injuries at a much later date, in order to avoid the three year period starting at the earlier date, it would be necessary to plead separately the physical and psychological injury cases. That had not been done here. What he had done was to claim for both physical and psychological injury going back to his time at Gartmore School, with the result that the whole claim was time-barred. In Carnegie v The Lord Advocate, at pages 813 to 814, it had been recognised that there could be separate triennia. However, that was not the approach adopted in the presentation of this case. That was particularly apparent from the averments in Condescendence XI.

[15] Although an attempt had been made by the pursuer in the Minute of Amendment, No. 79 of process, to address certain of the problems that existed in this case in relation to limitation, the averments added there did not assist the pursuer. He averred both silencing and suppression. These concepts were inconsistent. The former inferred an awareness of something, about which the subject was prohibited from speaking. Suppression involved a situation where the information ceased to be part of the subject's conscious recollection. However, neither of these situations could readily be brought within the scope of the statutory exceptions to the operation of the limitation period. Several of the averments in the Minute of Amendment were vague and unsatisfactory. In addition, the last sentence in the paragraph added to the pleadings was inconsistent with the averments concerning the preparation of the Social Enquiry Report in 1996.

[16] Counsel moved on to present his submissions relating to the possible application of section 19A of the 1973 Act to the circumstances of this case. He drew attention to the contents of paragraphs 8 to 10 of the written submissions. In essence, the submission was that the averments made relating to section 19A were incoherent and irrelevant. It was impossible to make sense of the pursuer's case in relation to section 17(2)(b) of the 1973 Act; likewise it was impossible to make sense of the pursuer's case under section 19A of that Act. The two cases were, to an extent, related. If a pursuer wished to invoke section 19A, it was necessary for him to aver a reasonable explanation for his failure, throughout the period of the delay, to raise proceedings timeously. However, that had not been done. In connection with this part of his submission counsel relied on Clark v McLean 1994 S.C. 410, at pages 411 and 413. That case showed that the onus was on the pursuer to satisfy the court that the terms of section 19A should be applied. Before that could be done, the court had first to determine whether the pursuer's case in relation to the application of that section was relevant. Furthermore, in Cowan v Toffolo Jackson & Company Limited the relationship between section 17 and section 19A was discussed. The invocation of section 19A proceeded on the hypothesis that adequate averments had been made in relation to section 17. One of the particular problems that arose in connection with the pursuer's case under section 19A was that the pursuer had not candidly averred his state of awareness and conduct throughout the period which had to be considered. In this connection reliance was placed on Prescription and Limitation, Johnston, paragraphs 12.10 and 12.11. A reasonable explanation for inaction required to cover the whole period of the delay. The contents of the Minute of Amendment, already referred to added to the confusion. In all the circumstances, the case under section 19A was incomprehensible and irrelevant.

[17] Counsel then proceeded to consider the second chapter of his submissions, concerned with the liability, if any, of the first to eighth defenders to make reparation. He submitted that the Lord Ordinary had erred in failing to sustain these defenders' second plea-in-law, directed to the relevancy of the pursuer's case against them. It was necessary to examine the averments made about these defenders by the pursuer. These were to be found in Condescendence I at page 8B to 9D of the reclaiming print; also in Condescendence II, at page 17D to E; and in Condescendence VII, at pages 45D to 48B. These averments constituted the pursuer's factual basis for his case against these defenders. It was explained by counsel that the de La Salle Order was a voluntary association. The first to seventh named defenders were the trustees of the Order, holding property on its behalf. The eighth named defender was the Congregation of the de La Salle Brothers. Thus, if a relevant case were to be made against the Order, the first to eighth named defenders were the appropriate defenders.

[18] It was submitted that the Lord Ordinary had erred in holding that the pursuer had averred sufficient to entitle him to a proof before answer in relation to his case against these defenders. In particular, the pursuer's pleadings were so confused, contradictory and unspecific as to be irrelevant and lacking in specification. In particular the legal basis of the pursuer's case against these defenders remained unclear. Attention was drawn particularly to the averments at pages 25B to C, 28D, 30D and 45E of the reclaiming print. Reference was also made to paragraphs 11 and 12 of these defenders' written submissions. During the course of the Procedure Roll discussion, the pursuer's second plea-in-law had been amended to delete a reference to the word "employees". Thus it appeared that the pursuer no longer contended that individual members of the Order who worked in the school were employees of it. This plea-in-law now referred simply to "persons for whom the defenders are responsible", without being associated with any explanation in the averments as to the legal basis for such responsibility. It appeared from paragraphs [94] and [95] of the Opinion of the Lord Ordinary that she had seen the existence of a relationship of agency between the Order and certain monks, which she considered rendered the Order liable for their acts carried out in the course of their agency. The difficulty with that approach was that it was impossible to identify the principal. In any event, the pursuer had no averments for a case of vicarious responsibility founded upon agency. It would not be appropriate for a proof to be allowed upon the basis that some legal basis for the pursuer's case against the first to eighth named defenders might emerge at it.

[19] As regards the Lord Ordinary's preferred view that liability might arise on the part of the Order on account of its being liable for the acts of its agents, there were no averments of the relationship of agency in the pursuer's pleadings. The pursuer did not aver how any such relationship had come into being. There could not be liability on such a basis without notice being given in the pleadings. In any event, the Lord Ordinary had failed to explain how her analysis consisted with the statutory regime whereby the school managers were legally responsible for the care and welfare of the children in the school and employed the monks and other staff at the school. The whole rationale of the law of agency involved an agent acting so as to create a contractual relationship between his principal and a third party. That had no application to the circumstances of this case.

[20] At this point, counsel drew our attention to certain legislation relating to approved schools, in particular, the Children and Young Persons (Scotland) Act 1937 and the Criminal Justice (Scotland) Act 1963. The former Act contained a number of provisions of importance in the present context. Section 61(1) authorised a court to order a child or young person to be sent to an approved school where that person had been found guilty of certain offences. Section 66(2) of the 1937 Act authorised a juvenile court to make an order sending a child or young person to an approved school, where that court was satisfied that that person was in need of care or protection. Sections 74(3), (4), (5) and (6) contained provisions relating to approved school orders. Under section 76 of the same Act, when an order was made, it would be delivered to the headmaster or person for the time being in charge of the school. Information in possession of the court with respect to the child or young person might be also transmitted to the headmaster, or person in charge of the school. Section 83 of the 1937 Act contained provisions whereby the managers of any school intended for the education and training of persons to be sent there in pursuance of the provisions of the Act might apply to the Scottish Education Department for approval of the school for that purpose. If at any time the Scottish Education Department were dissatisfied with the condition or management of an approved school, they might, by notice served on the managers, withdraw the certificate of approval of the school. The certificate of approval might also be surrendered by the managers of the school, in terms of this section. Sections 84 and 85 contained further provisions relating to the establishment and management of approved schools. It was of importance to note that, under section 85(3) of the 1937 Act the detailed provisions of the Second Schedule to the Act had effect in relation to the administration of approved schools and the treatment of persons sent thereto. Sections 87 and 94 of the Act contained further provisions relating to the management and financing of approved schools.

[21] It was not a matter of dispute that Gartmore School was a Roman Catholic approved school, designated as such in terms of section 85(1) of the 1937 Act. That was evident from items 5(a) and (e) of the documentation in the appendix for the first to eighth and eighteenth defenders. The position had been that the Archdiocese of Glasgow had bought the land for the school on which the necessary buildings had been erected, funded by the State. The provisions of section 110 of the 1937 Act were significant. That section provided a series of definitions for the purposes of the Act, including a definition of the expressions "Approved school" and "Managers" in relation to an approved school. In the case of an approved school not established or taken over by an education authority, or by a joint committee representing two or more education authorities, the "Managers" meant "the persons for the time being having the management or control thereof".

[22] The Second Schedule to the 1937 Act contained detailed provisions as to the administration of approved schools and other matters. Paragraph 1 authorised making by the Scottish Education Department of rules for the management and discipline of approved schools. Paragraph 12 provided that all rights and powers exercisable by law by a parent should, as respects any person under the care of the managers of an approved school, be vested in them.

[23] In exercise of the powers conferred by paragraph 1(1) of the Second Schedule to the 1937 Act, the Approved Schools (Scotland) Rules 1961 had been made. These rules contained detailed provisions relating to the management of approved schools. Rules 2 and 4 made it plain that the managers of an approved school were responsible for its management in the interests of the welfare, development and rehabilitation of the pupils. Rule 10 made it clear that, subject to the approval of the Secretary of State, the managers should, in consultation with the headmaster, determine the number, type and qualifications of the staff to be employed by them. They were responsible for the appointment, suspension and dismissal of staff. Under Rule 11, the headmaster was to be responsible to the managers for the efficient conduct of the school in the interests of the welfare, development and rehabilitation of the pupils. Under Rule 28, discipline and punishment were the responsibility of the headmaster. Under Rule 31, corporal punishment might be inflicted under the limited conditions defined therein.

[24] Counsel completed his survey of the legislative provisions relating to approved schools by referring to the provisions of sections 18 to 22 inclusive of the Criminal Justice (Scotland) Act 1963. He submitted that the legislation to which he had referred was in conflict with the Lord Ordinary's analysis of responsibility for Gartmore Approved School in paragraphs [93] and [94] of her Opinion. In any event, the pursuer's averments fell a long way short of what was said about his case by the Lord Ordinary in paragraph [94]. The inescapable fact was that the staff at the school must have been employed by the managers in terms of Rule 10 of the 1961 Rules. Certain of the staff were supplied by the de La Salle Order, which was not a monastic order. It was a teaching order and a charitable supplier of teachers.

[25] Counsel went on to elaborate the point made in paragraph 14 on page 16 of the written submissions for the first to eighth named defenders, which was simply to the effect that there were no relevant averments of agency that could justify the Lord Ordinary's conclusion in paragraph [94]. The essential feature of an agency relationship, which was not pled, was that the agent, either expressly or impliedly, consented to act so as to affect the principal's relationship with third parties. In connection with this submission counsel relied upon The Law of Scotland, Gloag and Henderson, 11th edition paragraphs 21.01, 21.03, and 33.05. He also relied upon The Mercantile Law of Scotland, 6th edition, MacNeil & Lilley, page 69, and The Mercantile and Industrial Law of Scotland, Gow, page 516. Counsel submitted that no question of agency could arise here because there were no averments of a contract between the de La Salle Order and those members who were members of the staff at the approved school.

[26] Further difficulties for the pursuer in supporting the conclusion reached by the Lord Ordinary arose from the fact that the de La Salle Order was an unincorporated voluntary association. Thus the association did not have a legal identity or persona separate from its members. Membership of a voluntary association did not involve a contract between the member and the association. It involved a contract between all its members. In support of these submissions reference was made to The Law of Scotland, Gloag and Henderson, paragraph 51.1; Stair Memorial Encyclopaedia, volume 2 paragraphs 801, 803 and 804 and volume 3, paragraphs 1632, 1638 and 1639; and Harrison v West of Scotland Kart Club 2004 S.C. 615, at paragraph 25. It was therefore submitted that, because the Order was not a separate legal persona, it could not be the principal in a relationship of agent and principal with its members. It could not enter into a contract with its members, whereby an agency relationship was created. However, it was accepted that the members of a voluntary association could engage one of their number to act as an agent on their behalf. However, that was not the nature of the relationship upon which the Lord Ordinary's analysis proceeded.

[27] It was submitted that the Lord Ordinary had erred in holding that voluntary associations were vicariously liable for delicts committed by their members as agents of the association. In relying, in paragraph [91] of her Opinion, on a passage in the Stair Memorial Encyclopaedia, volume 2, paragraph 814, she had misunderstood what was said there. She failed to appreciate that the authors proceeded on the basis that the members of the association were the principals and the committee of the association were agents of the members. The doctrine of vicarious liability necessarily required the existence of two separate legal entities, one of them acting on behalf of the other, as appeared from Carmichael v Bearsden and District Rifle and Pistol Club 2000 S.L.T. (Sh. Ct.) 49 at page 51. Here the purported principal, namely the Order, was not a separate legal entity. In any event, it was submitted that the authorities cited by the authors of the passage relied upon in the Stair Memorial Encyclopaedia did not support the proposition set out in it. Murdison v Scottish Football Union (1896) 23 R. 449 did not concern the liability of an association for its agents. McLeod v The Magistrates of St. Andrews 1924 S.C. 960 was not a case about the vicarious liability of an association. In Brown v Lewis (1896) 12 T.L.R. 455, the basis for the finding of liability was direct fault on the part of the committee, who had employed an incompetent tradesman to build the stand which collapsed. A further problem for the pursuer was that there were no averments to show why the representatives of the de La Salle Order, who had been convened as the first to seventh named defenders, should be responsible for alleged delicts which had occurred in the early 1960s.

[28] In paragraph [92] of her Opinion, the Lord Ordinary placed considerable reliance on a passage in The Law of Scotland, Gloag and Henderson at paragraphs 33.05 and 33.06. The view expressed in those passages, embodying a general proposition about the vicarious liability of principals for their agents had no sound basis. It was inconsistent with the dictum of Lord President Cooper in Mair v Wood 1948 S.C. 83, to the effect that it had never been laid down as a general proposition that all principals, as distinguished from employers, were liable for the negligence of their agents, as distinguished from their servants.

[29] Having regard to the statutory regime already referred to, it was submitted that it was clear that the approved school managers and the headmaster, an employee of and accountable to the managers, had the legal right to direct and control how the brothers employed at the school undertook their duties. The de La Salle Order had no such right. The pursuer was not offering to prove that that Order, or anyone in a supervisory role acting on behalf of the Order sought to control or supervise the conduct or duties of the teachers, or that they had the right to do so. In these circumstances, the de La Salle Order could not be vicariously liable for the wrongs committed by any of its members employed at the school. Control was a necessary, albeit not a sufficient requirement for vicarious liability. In the absence of any averments by the pursuer that the Order either could or did exercise any control of how the brothers at the school undertook their duties, the pursuer's case of vicarious liability against the first to eighth named defenders was bound to fail.

[30] In paragraphs [95] and [96] of her Opinion the Lord Ordinary had concluded that the ratio of Lister v Hesley Hall Limited was applicable to a situation where the wrongdoer was a monk acting as agent for his Order when fulfilling tasks of teaching, supervising and providing care to children in a residential school. In so holding, the Lord Ordinary had erred. She had either misunderstood the case, or misapplied it. That case was concerned with the extent of the concept of vicarious liability in a context of an employer and employee relationship. There was no authority for the extension of the application of that case to a situation where what was under consideration was the relationship between a principal and agent. Examination of the dicta in the case itself demonstrated that the House of Lords had been particularly concerned with the significance of the employer/employee relationship. There were several practical reasons why the principle recognised in that case should not be extended to a situation such as that with which the court was concerned here.

[31] Counsel turned finally to the third chapter of his submissions, related to the third ground of appeal for the first to eighth named defenders, to the effect that the Lord Ordinary had erred by ordering a preliminary proof in respect of "the status of the school managers" under reference to paragraphs [141] of the Lord Ordinary's Opinion. The fact was that the existence of the school managers as a legal persona distinct from the individual managers from time to time was recognised by the primary and secondary legislation governing their activities and duties, to which reference had already been made. It was quite clear that the managers were creatures of statue having a continuing and separate legal identity from the individual managers from time to time. No useful purpose would be served by the enquiry contemplated by the Lord Ordinary.

Submissions by junior counsel for the eighteenth named defender

[32] Counsel moved the court to allow the reclaiming motion, recall the Lord Ordinary's interlocutor of 13 September 2005, sustain the eighteenth named defender's first and fifth pleas-in-law and to dismiss the action, so far as it was directed against this defender. Counsel commenced by dealing with the case of direct liability made against this defender, based upon an alleged non-delegable duty. It was important to note how this case had been pled. It was averred at page 61 of the reclaiming print that the Scottish Education Department had had a duty

"to take reasonable care to remove boys such as the pursuer from said School once it had come to the Department's notice that said boys were being regularly and routinely assaulted."

In connection with this, the question arose of whether the Secretary of State had had any power to perform such a duty. While boys had been put into the School in consequence of court orders, which, plainly, the Secretary of State would have had no power to alter, paragraph 9 of the Second Schedule to the 1937 Act conferred power on the Scottish Education Department to transfer a person under the care of the managers of an approved school to the care of the managers of another school. Thus, if the word "remove" were read as "transfer" the alleged duty might have been capable of being performed. However, the pursuer's case was not supported by any averments that the Scottish Education Department had been aware that boys in the school were being regularly and routinely assaulted there. The pursuer's pleadings had originally contained averments of duty on the part of the Scottish Education Department to inspect the school from time to time, which were to be found at page 61A to C and D to page 62A. However, these averments had been excluded from probation by the Lord Ordinary, as appeared from paragraph [140] of her Opinion, which decision was not being challenged. The pursuer had made certain averments about the extent of the Scottish Education Department's knowledge of the state of affairs at the school during the period when he was resident there between pages 35C and 36D of the reclaiming print. However, those averments did not amount to averments of awareness that boys were being regularly and routinely assaulted. Nevertheless, the Lord Ordinary, in paragraph [104] of her Opinion considered that there was sufficient in the pursuer's averments to justify an enquiry, on the basis that the averments made attributed to the Scottish Education Department knowledge about absconding; serious concerns at the school concerning blows and the physical care of the boys; and certain other matters which she specified. She considered that there was sufficient on record to justify an enquiry in that the Scottish Education Department was averred

"to have had knowledge about certain deficiencies in the school which might reasonably foreseeably cause harm or injury to a child resident there."

In this connection, she considered that it was not necessary that the precise form of harm should be foreseeable, under reference to Hughes v The Lord Advocate 1961 S.C. 310; 1963 S.C. (H.L.) 31. It was submitted that the averments made were insufficient to justify the Lord Ordinary's conclusion. Furthermore, there were no appropriate averments of fault on the part of the Scottish Education Department, to the effect that, despite the alleged knowledge, that Department did not remove the pursuer from the school, which removal would have prevented the injuries of which he complained. Thus the pursuer's case as regards direct liability was irrelevant.

[33] In any event, it was difficult to accept that the duty averred, which related to, not just the pursuer, but "boys such as the pursuer" was anything other than an alleged duty to close the school, presumably by the withdrawal of its certificate of approval, under section 83(2) of the 1937 Act. Yet that duty was not averred.

[34] There also had to be considered the question of whether there had been the necessary relationship of proximity between the pursuer and the Scottish Education Department that could give rise to a delictual duty. As to that, it was submitted that the pursuer's pleadings did not indicate the existence of such a relationship of proximity. It was not sufficient that the Scottish Education Department might have had some concerns with the management of the school.

[35] Pursuing the foregoing submission, counsel traced the history of reformatory schools, industrial schools and approved schools, which were first mentioned in the Children and Young Persons (Scotland) Act 1932. The 1937 Act was a consolidation statute. St. Ninian's School had been first established in Glasgow, but was re-sited in around 1950 in Gartmore. The necessary land and buildings were purchased by the Roman Catholic Archdiocese of Glasgow. The approved school system survived until the passing of the Social Work (Scotland) Act 1968 which provided for the abolition of the system, by means of a gradual phasing out over time. The closure of St. Ninian's School was announced by the then Secretary of State for Scotland on 1 December 1981. It was considered that any liabilities incurred by the managers would have remained with them at the time of closure.

[36] Counsel next proceeded to summarise the position of the eighteenth named defender. First, as regards direct liability, the duty averred by the pursuer, said to be to take reasonable care to remove boys such as the pursuer from the school amounted to saying that, in the circumstances, the Secretary of State had had a duty to withdraw his certificate of approval of the school under section 83(2) of the 1937 Act, because the criticisms made of the general regime at the school in the pursuer's averments showed that all boys in care there were affected. Secondly, if the Secretary of State had a duty of any kind, it was one owed to the public, not to individual pupils. There was no intention in the statutory structure of other legal arrangements to confer any right of civil action on an individual pupil, such as the pursuer. There had been no relationship of proximity between an individual pupil at the school and the Secretary of State for Scotland; nor was it fair, just and reasonable that a duty should be imposed upon the latter, owed to an individual pupil. Thirdly, in relation to the issue of the existence of a common law duty of care, while the Secretary of State had had a discretion to remove boys from one school and to transfer them to another, in attempting to establish a duty, the pursuer had to aver that no reasonable Secretary of State would have failed to exercise his discretion to close the school in question.

[37] In connection with these submissions counsel relied upon X (Minors) v Bedfordshire County Council and Others [1995] 2 A.C. 633. The decision arose out of several cases in which issues were considered relating to the welfare and education of children in relation to local authorities. Certain of the cases, which were the subject of decision, were child abuse cases. In relation to those, the House of Lords held that the statutes in question were all concerned with the establishment of a system to promote social welfare. In such a context exceptionally clear statutory language would be required to indicate a parliamentary intention to create a private law remedy. Counsel drew attention particularly to the observations of Lord Browne-Wilkinson between pages 730 and 732, which dealt with circumstances in which a statutory duty might arise. At pages 734 to 735 Lord Browne-Wilkinson stated that, in order to found a cause of action flowing from the careless exercise of statutory powers or duties, the plaintiff had to show that the circumstances were such as to raise a duty of care at common law. The mere assertion of the careless exercise of a statutory power or duty was not sufficient. Our attention was also drawn to pages 736 to 737 and 739 to 740 in the speech of Lord Browne-Wilkinson. Counsel submitted that the approach there described should be adopted in this case. The pursuer had failed to aver circumstances giving rise to the common law duty of care upon which he relied. In particular, there were no averments showing the appropriate degree of proximity. Counsel recognised that the managers of the school would have been in a quite different position from that of the Secretary of State for Scotland. Because of their practical responsibility for the conduct of the school, a common law duty of care on their part to pupils at the school could readily have been inferred. Counsel knew of no case where the existence of a statutory duty of supervision had given rise to a common law duty of care.

[38] It was further submitted on behalf of the eighteenth named defender that the pursuer's averments, such as they were, concerning what the Scottish Education Department had known, fell short of knowledge of circumstances in the school regime of such a character that the school's certificate of approval should have been withdrawn. In particular, what the pursuer had averred concerning knowledge on the part of the Scottish Education Department did not amount to knowledge that boys at the school were being regularly and routinely assaulted. In paragraph [104] of her Opinion, the Lord Ordinary had gone too far. Furthermore, she was in error in thinking that Hughes v The Lord Advocate was in point.

[39] Counsel then turned to consider the possibility of vicarious liability impinging upon the eighteenth named defender. In this connection it had to be noted that, in paragraph [140] of her Opinion, the Lord Ordinary had excluded from probation the averment at page 11B to C of the reclaiming print that some of the staff who worked at the school had been employed by the eighteenth named defender's statutory predecessors. That part of her decision was not under challenge. A further important part of the background was that Rule 10 of the Approved Schools (Scotland) Rules, 1961 (S.I. 1961 No. 2243) made it clear that the staff at the school were employed by the managers. However, in paragraph [111] of her Opinion, the Lord Ordinary had ordered inquiry in relation to possible involvement of the Scottish Education Department in the employment of staff. There were no averments of the pursuer to justify any inquiry into that matter. In particular, the averments at page 9B to C of the reclaiming print did not justify it. They were irrelevant. In short, the Lord Ordinary's conclusion in paragraph [111] was without foundation in the averments. Even if the Scottish Education Department had had a part to play in the employment of an employee, it was not clear why that should lead to the conclusion that the Secretary of State was vicariously liable for the acts of such staff in the course of their employment. To suggest otherwise would be to lose sight of the basis of vicarious liability on the part of an employer, which lay in the control exercised by the employer over the employee. In that connection counsel relied upon Clerk & Lindsell on Torts, 19th edition, paragraphs 6.06 to 6.08. There was nothing in the 1961 Rules, or elsewhere, to indicate that the Secretary of State had exercised any degree of control over the day-to-day activities of the staff at the school in the course of their employment. It was possible to conceive of a case based upon an allegation of fault in connection with the selection of staff. Such a case would normally be made against employers who had engaged staff without the exercise of reasonable care. However, in the averments in this case, there was no suggestion of such a case being made against anyone for whose conduct the eighteenth named defender might be responsible.

[40] It was, of course, the position that the Secretary of State would have made a contribution to the expenses of the managers of an approved school, in terms of section 107 of the 1937 Act. The managers of such a school would also have received a contribution to expenditure from local education authority in terms of section 94(1) of that Act. However, the fact that such payments might have been made to an employer of staff could not give rise to vicarious liability on the part of the payer for the acts of the employer's staff.

[41] Counsel next proceeded to consider the possibility of liability on the part of the eighteenth named defender on the basis of breach of a non-delegable duty having been imposed upon the statutory predecessors. In Condescendence X at page 58 of the reclaiming print the pursuer averred that

"the loss, injury and damage sustained by the pursuer was caused by breaches of duty for which the eighteenth defender is liable. It was their (sic) duty to take reasonable care for the safety and welfare of children in approved school such as the pursuer. They (sic) were under a non delegable duty to children in custody, who had been deprived of their liberty and removed from the care of their parents, to see that those children were not ill-treated, abused, harmed or injured and to see that they were kept safe."

It was accepted that, in certain circumstances, non-delegable duties had been held to exist, an example of which was to be found in English v Wilsons and Clyde Coal Company Limited 1937 S.C. (H.L.) 46. It could also be accepted that where a person was charged with a duty of care in respect of a child, that duty might be non-delegable. However, it was plain from the statutory background to the approved school system that the duty to care for children in approved schools rested with the managers of those schools, not with the Scottish Education Department. Accordingly, any non-delegable duty involved would have been incumbent on those managers. However, whatever their position might be, the live question in the present case was whether those for whom the eighteenth named defender was responsible had owed a duty such as was contended for by the pursuer. As regards that, it was important to note that, as averred, the duty was one of insurance; in paragraph [113] of her Opinion the Lord Ordinary concluded that the reasoning in Lister v Hesley Hall Limited [2002] 1 A.C. 215 made it necessary for the courts to recognise the existence of a common law non-delegable duty of care on the part of a government body, such as that represented by the eighteenth defender, in respect of children allocated by the Government to government-created residential schools, such as St. Ninian's. In reaching that conclusion the Lord Ordinary relied on K.L.B., P.B., H.B. and V.E.R.B. v The Queen (British Columbia) [2003] 2 S.C.R. 403, although it was held that the legislation under consideration offered no basis for imposing on the superintendent a non-delegable duty to ensure that no harm came to children through the abuse or negligence of foster parents. Paragraphs 30 to 37 of the judgment of McLachlin C.J. showed that what was important was to look at the relevant legislation to see on whom the duty might be imposed. The position of the superintendent in that case was equiparable to that of the managers here. In paragraph [113] of her Opinion, the Lord Ordinary had gone far beyond anything that was justified by the authorities. The Lord Ordinary appeared to think that there was some distinction between what might be called "direct traditional liability" and a "non-delegable duty of care". There was no basis in law for the recognition of any such distinction.

[42] In paragraph [116] of her Opinion, the Lord Ordinary attributed importance in the present context to Lister v Hesley Hall Limited. However, counsel submitted that there was nothing in that case which justified the conclusion which the Lord Ordinary had reached. She had misdirected herself in this connection. That case was concerned with the issue of the extent or scope of the vicarious liability of employers for the wrongful actions of their employee, the warden of the boarding house. It had nothing to do with the criteria by reference to which a non-delegable duty might or might not be held to exist. The Lord Ordinary's observations in paragraphs [116] and [117] were completely misconceived. The Lord Ordinary had never asked herself as to whether the eighteenth named defender's predecessors were under a duty of care, by reference to the appropriate criteria.

[43] Summarising his position on this aspect of the case, counsel submitted that, for a body to be under a duty of care for others, it was necessary that they should be shown to have responsibility for that care. If there was a duty, the body could not escape liability merely because it entrusted the provision of such care to employees. However, there was no reason in principle, or policy, for imposing such duties on a government department charged with a regulatory or supervisory function in relation to the provision of care by others. Such a body was not charged with the obligation to provide care and had no direct control over its provision. This part of the pursuer's case, which had been upheld by the Lord Ordinary, was without foundation.

[44] Counsel finally indicated that he adopted the submissions of junior counsel for the first to eighth named defenders in relation to issues of limitation.


Submissions by junior counsel for the pursuer

[45] Counsel moved the court to refuse the reclaiming motions for the first to eighth and eighteenth named defenders and uphold the pursuer's cross-reclaiming motion, allowing a proof before answer on all matters excluding those which had been excluded from probation by the Lord Ordinary. She referred to the pursuer's written submissions, which set forth in detail the pursuer's position. It was important for the court to be aware that the present litigation was of the nature of a test case; there were approximately 150 other cases brought against the first to eighth named defenders and the eighteenth named defender, in which legal aid had not been granted until a decision was reached in this case. Beyond that, there existed approximately 400 other actions arising out of the alleged abuse of children in residential institutions. The court's decision in relation to time-bar was likely to affect those actions.

[46] The pursuer's submissions would fall into six chapters:

1. Time-bar, involving (i) section 17 of the Prescription and Limitation

(Scotland) Act 1973 and (ii) section 19A of the 1973 Act;

2. Overview on liability of the defenders;

3. Vicarious liability, relating to (a) the first to eighth named defenders, and (b)

the eighteenth named defender;

4. Non-delegable duty of the eighteenth named defender;

5. Direct liability of the eighteenth named defender; and

6. The scope of the proof before answer.

[47] Turning to the matter of time-bar, counsel drew our attention to certain parts of the pursuer's pleadings, particularly Condescendences III and XII. The pursuer's position was that he had not required medical treatment in relation to intrusive memories until 1999. The pursuer's treatment began following the emergence of intrusive memories in about May 1999. The present action had been raised in May 2000. Accordingly, it was not time-barred, the pursuer's position being that the triennium commenced in 1999. In Stubbings and Others v The United Kingdom (1996) 23 E.H.R.R. 213 the European Court of Human Rights noted that there had been a developing awareness in recent years of the range of problems caused by child abuse and its psychological effects on victims. It was possible that the rules on limitation of action applying in Member States of the Council of Europe might have to be amended to make special provision for this group of claimants in the near future. However, it was submitted that the English courts had been able to accommodate such claims without amending legislation. Counsel then drew our attention to the provisions of section 17 of the 1973 Act. She pointed out that, at the time of the alleged abuse, the pursuer had been 12 years old. He had achieved majority at the age of 18. Unless the provisions of section 17(2) could be invoked, the pursuer's claim would have been time-barred on his attainment of 21 years of age.

[48] There was recent English authority for the proposition that, in some cases of historic child abuse, the triennium might not begin until there had been a psychiatric diagnosis, or until the claimant contacted solicitors. That was because the adult claimant in respect of child abuse might not realise that the injuries suffered were significant in the sense of being sufficiently serious for statutory purposes until they had been told that by a medical or legal expert. In this connection, reliance was placed on K.R. and Others v Bryn Alyn Community (Holdings) Limited [2003] Q.B. 1441. The effect of that decision was to allow most of the cases under consideration to proceed as a matter of right under the English equivalent of section 17 of the 1973 Act, but to hold that, in such cases, the court would have been unlikely to exercise its discretion under the English equivalent of section 19A of that Act. While there were certain important differences between the 1973 Act, applicable in Scotland, and the Limitation Act 1980, applicable in England and Wales, there were sufficient similarities to justify the use of English decisions, such as K.R. and Others v Bryn Alyn Community (Holdings) Limited in determining the present litigation. Indeed, it would be unsatisfactory for different approaches to be applied in Scotland and England. The approach taken in K.R. and Others v Bryn Alyn Community (Holdings) Limited, appeared now to be well-established in England, as appeared from Adams v Bracknell Forest Borough Council [2005] 1 A.C. 76.

[49] It was submitted that the word "knowledge" used in section 14(1) of the Limitation Act 1980 was not significantly different from a person who had "become aware" within the meaning of section 17(2)(b) of the 1973 Act. Nor was there any real difference between the law of Scotland and the law of England regarding whether the test was subjective or objective. That issue had been discussed in Carnegie v The Lord Advocate 2001 S.C. 802. However, it was recognised that there were difficulties involved in observations made in one jurisdiction concerning the legislation applicable there to another, as was stated in M.P. v Sister Zoe O'Neill and Others [2006] C.S.O.H. 93 (16 June 2006; unreported). Counsel submitted that the pursuer's averments relating to awareness of the statutory facts, suggesting that it did not emerge until 1999, were sufficient to justify an investigation relating to the possible application of section 17 of the 1973 Act. If there were to be a proof in relation to the application of section 19A of that Act, that proof should extend also to the application of section 17. It could not be said at this stage that the pursuer was bound to fail.

[50] Counsel next turned to examine Carnegie v The Lord Advocate in some detail. It was her contention that there might be two triennia in a particular case, related to two distinct claims, as was contemplated by Lord Johnston in that case at page 813. That approach was justified by the terms of the statute; and had been recognised by Lord Glennie in M.P. v Sister Zoe O'Neill and Others in paragraph [29]. However, as counsel recognised when pressed by the court, before separate claims could be treated separately, they required to be the subject of distinct averments.

[51] At this point in the submissions senior counsel for the eighteenth named defender expressed his concern as to the way in which the pursuer's case was being presented. He contended that the submissions now being made represented a volte face, from what had been submitted before the Lord Ordinary. The court had to be satisfied that the pursuer's pleadings were apt to allow the present submissions to be made. That question could be determined forthwith. It appeared to us, however, that the pursuer's submissions should be permitted to continue. If it were the case that their form had created prejudice of some kind for the eighteenth named defender, that might be dealt with at a later stage.

[52] Counsel completed this part of her submissions by drawing our attention to the fact that there had been only one decision in the Scottish courts on the application of section 17 of the 1973 Act in the context of historic child abuse, B. v Murray 2004 S.L.T. 967 and B. v Murray (No. 2) 2005 S.L.T. 982. However, reclaiming motions had been enrolled against these decisions.

[53] Counsel next proceeded to make submissions relating to section 19A of the 1973 Act. She submitted that the pursuer had made sufficient averments to justify inquiry into the possible application of that section. In this connection she relied on Ablett and Others v Devon County Council and the Home Office (4 December 2000; unreported). Issues of the nature involved could not be decided against the pursuer on paper. The relevant averments were to be found in Condescendence XII. Explanations had been stated covering the reasons why proceedings had not been raised during much of his life. An explanation of what he had said at the time of the interview for the Social Enquiry Report founded upon was given. The substantial point was that the pursuer had not started disclosing abuse until 1999. In B. v Murray, a preliminary proof had been allowed in relation to section 19A of the 1973 Act. It would be appropriate for a proof to embrace the pursuer's case under section 19A and under section 17(2) of the 1973 Act.

[54] Counsel moved on to deal with the second chapter of her submissions, an overview on the liability of the defenders. She began by drawing our attention to averments concerning the pursuer's residence within St. Ninian's Approved School and the statutory provisions under which the approved school system operated. She contended that what she called the "employment relations" at the school were unusual. She drew our attention of the position of the managers in terms of the Approved Schools (Scotland) Rules 1961. She appeared to contend that the definition of the "managers" in section 110 of the 1937 Act was wide enough to include the de La Salle Order, or at least those members of the Order having the management or control of the school at any particular time. However, counsel recognised that, at the material time, several persons had been appointed as managers. Representatives of the managers had originally been convened as the ninth to fifteenth named defenders. It had been revealed by senior counsel for those defenders at the procedure roll debate that no insurance arrangements existed to cover any liabilities of the managers. On that basis, the pursuer had decided to discontinue the proceedings against those defenders. In connection with this part of her submissions counsel drew our attention to Macdonald and Another v The Board of Management for Glasgow Western Hospitals 1954 S.C. 453 and to the observations of Lord President Cooper at page 465, a case concerned with vicarious liability of hospital managers. Reverting to the statutory background of approved schools and to the 1961 Rules, counsel said that the de La Salle Order had "supplied the headmaster" of St. Ninian's School. He was in de facto control of the school. She attached particular importance to the averments at page 18D to E of the reclaiming print, concerning the conduct of the headmaster. Counsel recognised that the Lord Ordinary's conclusion in paragraph [93] of her Opinion made it impossible for the pursuer to rely upon vicarious liability on the part of the Order, based on an employer/employee relationship. However, the Lord Ordinary's reasoning in that paragraph and elsewhere relating to agency was supported. Agency had to be the basis of liability on the part of the Order. Nevertheless, counsel agreed that the pursuer had no pleadings relating to the matter of agency relied upon by the Lord Ordinary.

[55] Counsel went on to deal with chapter 3 of her submissions, concerned with vicarious liability. At this point senior counsel for the pursuer intervened to propose an amendment to the pursuer's pleadings which would have taken the form of the addition of certain words after the word "herewith" at D on page 9 of the reclaiming print. The words sought to be added were: "The Order did operate said school at the material time." This motion was opposed by senior counsel for the first to eighth named defenders. He advanced a number of grounds as to why it should be refused. First, the action had been in court for more than 6 years; the proposed amendment was very late indeed. Secondly, there was no explanation proffered at all as to why the amendment was proposed at this very late stage. Thirdly, the words sought to be added to the pursuer's pleadings were utterly lacking in any specification. As had already been made clear, the operation of approved schools was subject to a complex statutory regime, under which the managers of a school were responsible for its operation. What was proposed was in conflict with the legal structure of approved schools, set out in statute. Fourthly, if the proposed amendment were to be entertained, it would require to be answered by these defenders, which, at this stage, would disrupt the hearing of the reclaiming motions. Fifthly, the words sought to be added appeared to be related only to the selection and employment of staff; however, the managers of the school were, under statute, in loco parentis to the pupils. Sixthly, a history of the litigation showed that the court had hitherto been very indulgent so far as amendments to pleadings by the pursuer were concerned. Having regard to the stage reached in the litigation, that indulgence ought to end.

[56] Senior counsel for the eighteenth named defender also opposed the motion. He said that the words sought to be added were wide, sweeping and of uncertain meaning. He associated himself with the reasons for refusal advanced by senior counsel for the first to eighth named defenders.

[57] In response to these objections, senior counsel for the pursuer submitted, as regards lateness, that what was now sought to be said had been implicit from an early stage, having regard to the averments made at page 9C to D of the reclaiming print. He went on to appear to contend that two bodies might, at the same time, be vicariously liable for the same wrongful conduct. This whole area required proof.

[58] After considering the motion, we decided to refuse it. Our reasons for doing so are set out at a later stage in this Opinion.

[59] Thereafter the submissions by junior counsel for the pursuer were resumed. She submitted that she would move on to consider the issue of direct liability on the part of the eighteenth named defender. At the Procedure Roll debate it had been said that this defender accepted that the State had certain duties of reasonable care; the issue had been whether such a duty could be delegated. So far as the pursuer was concerned, the hurdle was the matter of proximity. It was submitted that the necessary proximity existed because the pursuer had been deprived of his liberty by the organs of the State. It followed from that position that the State assumed a responsibility for his welfare. The pursuer had made averments at page 60D to 61A of the selection of St. Ninian's School in his case by the Scottish Education Department. The relationship of proximity arose from the statutory powers of that Department, rather than its involvement in the certification of the school. The provisions of section 74 of the 1937 Act were important, which dealt with the contents of Approved School Orders. The situation was comparable to that dealt with in Napier v The Scottish Ministers 2004 S.L.T. 555. It had been accepted in that case that the Scottish Ministers had had a duty to exercise reasonable care for the health and safety of prisoners in prisons. If the State was seen as having a supervisory role, but not a management role, in relation to approved schools, it was submitted that that role created a relationship of proximity. In this connection reference was made to X (Minors) v Bedfordshire County Council; also to Barrett v Enfield London Borough Council [2001] 2 A.C. 550. The plaintiff in the latter case had been placed in the care of the defendant local authority. The House of Lords had decided that the facts of that case ought to be investigated with a view to determining the issue of whether the duty of care contended for existed. The local authority had been in loco parentis. Reverting to the present case, the important considerations were that the Scottish Education Department had had certain powers: it approved schools, it issued certificates, it could withdraw approval, it could appoint inspectors and it had the power to discharge or transfer children from an approved school, or to release them. Reference was made to the Second Schedule to the 1937 Act and to the pursuer's averments at page 59 of the appeal print and following pages. It was important to recognise that, as was averred at pages 35A to 37A of the reclaiming print, the Scottish Education Department had been on notice that there were problems of management at St. Ninian's School. The Lord Ordinary, in paragraph [104] of her Opinion, concluded that the circumstances did give rise potentially to a duty of care on the part of this defender. What she said there was adopted.

[60] Counsel moved on to consider the issue of non-delegable duties in relation to the eighteenth named defender. At this point, senior counsel for this defender raised the question of why the court was required to consider that matter, since the position of the eighteenth named defender was that, if the Scottish Education Department had had a duty, there was no suggestion that it was in fact entitled to delegate the duty. Counsel for the pursuer went on to draw our attention to Costello-Roberts v The United Kingdom 1993 19 E.H.R.R. 112, which she contended illustrated that there was a State responsibility for punishment in the context of a private school. It showed that the State could be liable for powers retained by it in relation to punishment.

[61] Counsel next turned to deal with the issue of the vicarious liability of the first to eighth named defenders. The conclusion of the Lord Ordinary in paragraph [93] of her Opinion was supported. The basis of the vicarious liability was agency, not the relationship of employer and employee. Attention had to be focused on the averment that the Order had sent its members to the school. The Order received money for sending them there. It was contended that that state of affairs set up a relationship of agency. If agency were established, the question would then be whether that created vicarious liability. The scope of the mandate involved was the provision of educational services, teaching care and supervision services. Ellis v The National Free Labour Association and Others (1905) 7 F. 629 was of assistance.

[62] Finally, counsel turned to the issue of whether, as ordered by the Lord Ordinary, there should be a preliminary proof limited to certain issues, or alternatively a proof at large. She submitted that it would be appropriate for a proof before answer to be allowed rather than any preliminary proof on time-bar or other issue. The merits of the action were inextricably linked with the time-bar issues. If a preliminary proof were held, evidence given at it would require to be duplicated at any subsequent proof on the merits. That was because of the need to go deeply into the very issues that formed the subject-matter of the case on liability. Reference was made to pages 24 to 25 of the pursuer's written submissions.

Submissions of senior counsel for the first to eighth named defenders

[63] Senior counsel adopted the submissions made by junior counsel. He began by focusing attention on the provisions of section 17(2) of the 1973 Act. He stated that the pursuer had attained majority on 15 September 1971, on which date the non-age provisions of section 17(3) of that Act ceased to operate. The present action had been raised in May 2000. Accordingly, the pursuer had to make a case to show how the 28 year period between his attainment of majority and the raising of the action could be bridged. The issue was whether the pursuer could invoke section 17(2)(b) of the 1973 Act effectively to postpone the commencement of the triennium to a moment within 3 years of the commencement of the action. The onus of averment and proof as to that would be on the pursuer. He had to aver a relevant and specific case under section 17(2)(b). It was submitted that he had failed to do so.

[64] The question had to be asked of what were the requirements for such a case. If the statutory fact defined in section 17(2)(b)(i) was to be relied upon, the pursuer would require to have pled (1) when the ill-effects or symptoms of the wrongful act or acts came into play; (2) when those ill-effects or symptoms became sufficiently serious to justify the bringing of an action of damages; and (3) when and how the pursuer reached the point of awareness of the statutory facts. That date would be the start of the triennium. The pursuer had completely failed to aver a relevant and specific case, which was of particular importance in a context in which the injuries were said to have their origin in assaults, the awareness of which would have been immediate. The principles just described applied without distinction between types of injuries. The averments about the Social Enquiry Report in Condescendence XII were of great importance. The pursuer himself had averred that, during the course of the interview prior to the preparation of the report he had told the social worker of systematic abuse, although he denied that the words "bizarre and awesome punishment regime" were his, as opposed to those of the social worker. The pursuer's own averments at page 75D to 76 of the reclaiming print showed that, as early as June 1996, he had been the subject of a diagnosis as having a significant psychiatric condition. He also averred that he had given the social worker who prepared the Social Enquiry Report a description of the regime at St. Ninian's, which he said had involved systematic abuse. It was submitted that, looking at these averments, it was nonsense for the pursuer to claim that the action was not time-barred. It was inevitable that the pursuer must have had an awareness of injury inflicted in physical assaults and that those injuries were attributable to the acts of staff at the school in 1996 and earlier. Having regard to the averments which the pursuer had made and also had failed to make, his attempt to invoke the provisions of section 17(2)(b) was bound to fail.

[65] Senior counsel turned next to the matter of the proper interpretation of section 17(2) in the context of the pursuer's case. In relation to this part of his case, the pursuer had attempted to rely on what was described as "suppression of memory". Yet, there was a series of averments of the pursuer which showed that, both in childhood and adulthood, he had had a clear recollection of the assaults inflicted upon him. The particular averments concerned were detailed in paragraph 6(1) of the written submissions for the first to eighth named defenders. The inescapable conclusion from the pursuer's own case was that he had been aware of the injuries inflicted upon him and the responsibility of members of the school staff for the infliction of those injuries at a number of different times during his adult life. There was a dilemma in the pursuer's position. He claimed suppression of memory. However, before a memory could be suppressed, it must have been possessed in the first place. If it was possessed in the first place, then the fact of its suppression did not assist the pursuer in the present context, because, from the outset, he had had an awareness of his injuries and the persons responsible for their infliction.

[66] Looking at the terms of section 17(2)(b), it was plain that it was focused upon one particular date. Thus if there had been awareness of relevant matters and if that awareness had been lost for some reason, a claimant had passed the temporal point at which he could avail himself of the provision. Putting the matter in another way, a triennium which had started to run could not be suspended by suppression of memory; it could only be suspended by supervening unsoundness of mind, in terms of section 17(3) of the 1973 Act.

[67] Even if the foregoing submission was wrong, the pursuer's averments, already referred to, made it impossible for his case on time-bar to succeed. It was plain, according to his own version of events, that he had had actual awareness of the injuries since their infliction.

[68] The concept of the "silencing" of victims of childhood abuse had been introduced by the pursuer in the averments added at page 71B of the reclaiming print by Minute of Amendment. It was submitted that that concept involved an individual being aware of certain matters, but being unable to speak of them, save perhaps to family members. However, silencing operated on the will of the individual, not upon their understanding, or awareness. It had not been contemplated as a factor relevant to the application of section 17(2) of the 1973 Act, by Parliament.

[69] Turning to the submissions made by the pursuer, senior counsel dealt with K.R. and Others v Bryn Alyn Community (Holdings) Limited. He submitted that that case was of no assistance to the pursuer because, first, the part of it relied upon was concerned with long-term mental abuse in childhood. In the present case there was a composite claim for both physical and psychological effects of wrongful actings. Secondly, there were certain important differences between the Scottish and English legislation, particularly in relation to the English distinction between deliberate and negligent abuse. Section 17(2)(b) was concerned with either actual awareness of the matters concerned, or constructive awareness. Looking at section 14 of the Limitation Act 1980, the wording used was materially different. In section 14(1) the statutory facts in relation to the date of knowledge, for the purposes of sections 11 and 12 of the Act were set out. The first of these was: "(a) that the injury in question was significant; ... ". Section 14 (2) contained a definition of "significant" which was materially different from anything appearing in section 17(2) of the 1973 Act and was more focused upon the subjective position of the individual under consideration. These differences in the statutory provisions had led to a perceptible difference in the approach of the courts in Scotland and England. The English courts had looked closely at whether, in all circumstances, the claimant did or should have looked at the possibility of commencing litigation. In that connection reference was made to paragraphs 40 to 42 of the judgment of Auld L.J. in the case under consideration. By contrast the Scottish approach had been to look at the seriousness of the injury, but not to focus upon the question of whether the claimant did or might reasonably have considered bringing an action against any person. In short, in Scotland, there was no direct counterpart to section 14(2) of the 1980 Act.

[70] In this connection senior counsel relied on M.P. v Sister Zoe O'Neill and Others. In paragraph [50], Lord Glennie concluded that there was a danger in seeking to apply K.R. and Others v Bryn Alyn Community (Holdings) Limited uncritically to the Scottish legislation. That supported the submissions being made. Reliance was also placed on Prescription and Limitation, Johnston, paragraph 10.40, where it was pointed out that section 17(2)(b) referred to "facts" that meant that the court, in deciding at what date the pursuer had the necessary awareness, would be interested only in matters of fact.

[71] Responding to the submissions of junior counsel for the pursuer, senior counsel said that her final position appeared to have been that, for the purposes of section 17(2) of the 1973 Act, there were two injuries, first, the physical injuries and, second, the psychological injuries. Upon that basis it was contended that the triennium began to run in 1999, coinciding with the appearance of a newspaper article, which it was said had affected the pursuer's recollection. She had relied on section 17(2)(b)(i) and (ii). That was apparently consistent with the position taken up by the court in Carnegie v The Lord Advocate. However, that case made clear that for there to be separate triennia, the two injuries must be wholly distinct; it was not sufficient that one should be an exacerbation of the other, with a separate starting date. However, looking at the averments of loss made by the pursuer in the present case, it could not be regarded as a case involving a claim for a psychiatric condition giving rise to a triennium separate from that pertaining to the other injuries. No different starting date was claimed. In any event, having regard to the averments made in Condescendence XI, psychological consequences of the alleged wrongful acts had emerged from the outset. Having regard to the state of the pursuer's pleadings, it was impossible to discern a case made involving separate triennia. There were no factual averments of a wholly distinct injury, as contemplated in Carnegie v The Lord Advocate. It followed that the provisions of section 17(2)(b)(i) and (ii) could not be invoked to inhibit the commencement of the triennium. The pursuer had a whole series of averments applicable to childhood onwards. He had actual knowledge of significant injuries which had existed from the outset. The present case was similar to B. v Murray 2004 S.L.T. 967. There was no question here of separate injuries averred with a separate triennium applicable to each. The foregoing submissions presupposed that the decision in Carnegie v The Lord Advocate was sound. One of the factors giving rise to concern about that was that section 17(2)(b) of the 1973 Act referred to "the date ... " in the singular. However, that language might not constitute a serious problem in that section 17(2)(b)(i) referred to "the injuries in question"; there might be more than one set of "injuries in question". On the whole matter of the soundness of Carnegie v The Lord Advocate, the position of senior counsel was that that case was good law. In that connection it was necessary to notice that in M.P. v Sister Zoe O'Neill and Others, at paragraph [29] Lord Glennie had cast doubt upon Carnegie v The Lord Advocate. Senior counsel did not support that position. If senior counsel's view of Carnegie v The Lord Advocate was wrong, then the pursuer in the present case was plainly time-barred, regardless of his pleadings, because the physical injuries which were averred had been known about by him since their infliction.

[72] Senior counsel then proceeded to consider the pursuer's case under section 19A of the 1973 Act. He submitted that there existed a formidable range of factors operating in favour of the first to eighth named defenders. Prominent among these was the very great period of time that had elapsed following upon the expiry of the triennium which he contended operated in the light of the amount of time that had passed. He contended that the pursuer's pleadings relative to this part of the case should be scrutinised with particular care to see if the obstacles in the face of the pursuer's success might be overcome. In connection with this submission he relied upon B. v Murray (No. 2). Senior counsel also submitted that the approach taken by the court to the application of section 33 of the Limitation Act 1980 in K.R. and Others v Bryn Alyn Community (Holdings) Limited was sound. The very long delay involved in that and the present case, with a consequent likelihood of a serious decline in the quality of justice possible following upon such delay were cogent factors. The Lord Ordinary's decision in holding that the pursuer's averments in Condescendence XII entitled him to a preliminary proof on whether the court should exercise its equitable power under section 19A of the 1973 Act was erroneous. It was well-known that, if a pursuer wished to invoke section 19A, he required to aver a reasonable explanation for his failure to raise proceedings timeously, throughout the period of delay involved. No such averments had been made here, with the result that this part of the pursuer's case was irrelevant. In this connection reference was made to Prescription and Limitation, Johnston, paragraphs 12.10 to 12.11. It was necessary for the pursuer to aver candidly his state of awareness and conduct throughout the relevant period of delay, as appeared from Cowan v Toffolo Jackson & Company Limited, at page 1003J to K. Looking at the pursuer's pleadings, it was not possible to identify clearly the factors upon which he sought to rely to persuade the court that it would be equitable to allow his claim to proceed. There was therefore an unsatisfactory and insufficient factual basis for the court to exercise its section 19A discretion and fair notice had not been given to the defenders of the factual basis of the application under that section.

[73] Senior counsel proceeded next to deal with the pursuer's case of vicarious liability against the Order. It had been submitted on behalf of the pursuer that the Lord Ordinary was correct in holding that vicarious liability might exist upon the basis of a relationship of principal and agent. Senior counsel submitted, first, that the Lord Ordinary had erred in paragraphs [93] to [94] of her Opinion in concluding that, while the pursuer's averments were insufficient to support a case of vicarious liability on the part of the Order based on an employer/employee relationship, they were sufficient to support a relevant case based on agency. The fact was that there was no basis whatever in the pursuer's pleadings for such a case. It was not even mentioned in the most peripheral way. There were no averments of fact and no pleas-in-law supporting such a case. The Lord Ordinary had engaged in a frolic of her own. In these circumstances, the first to eighth named defenders should succeed.

[74] Even if the complete lack of pleadings to support a case of agency on the part of the pursuer were overlooked, it could hardly be contended that the wrongful acts attributed to members of the Order were within the scope of any comprehensible authority, rendering these defenders liable. In any event, there was no authority to show that, in general, a principal was vicariously liable for the wrongful actings of an agent. In that connection reliance was placed on Mair v Wood. No attempt had been made on behalf of the pursuer to cite any authority to support the pursuer's position. No reference had been made to the standard works on agency such as Agency, Bowstead and Reynolds, (16th edition in 1996). The case of Lister and Others v Hesley Hall Limited had no relevance to this context, since it was an employment case.

[75] Turning to the Lord Ordinary's analysis of the situation in paragraphs [93] to [95] of her Opinion, she had focused first on the matter of agency and secondly on the scope of the authority of members of the Order. As regards the former, the Lord Ordinary appeared to have overlooked that the essential feature of an agency relationship was that the agent, either expressly or impliedly consented to act so as to affect the principal's relations with a third party, in other words the purpose of agency was the creation of a legal relationship between the principal and a third party. However, that concept simply had no application to the admitted circumstances of this case. There was no question of members of the Order being at St. Ninian's School in order to create a legal relationship between the Order and any third party. Quite simply, members of the Order were not present in the school to undertake any agency function. The Lord Ordinary had made no attempt to explain how her analysis consisted with the acknowledged statutory regime whereby the school managers were legally responsible for the care and welfare of the children at the school and employed members of the Order and other staff at the school. Having regard to the statutory regime, the only tenable analysis, absent averments to the contrary, was that the school managers were legally responsible for the teaching, care and supervision of the children at the school and that the school managers employed the staff at the school, including members of the Order. Averments that members of the Order were "sent" to the school and that the Order "supplied most of the teachers to the school" had to be read in the context of the statutory provisions which made it clear that teachers at the school were employed by the managers. At page 10A to B of the reclaiming print the pursuer himself had averred that the ninth to fifteenth named defenders, the managers, had various responsibilities under and in terms of the Approved Schools (Scotland) Rules 1961. These defenders were responsible for discussing complaints made by the pupils with the headmaster. They were responsible for the management of the school in the interests of the welfare, development and rehabilitation of the pupils. Those averments were inconsistent with the Lord Ordinary's analysis. It had been contended on behalf of the pursuer that the definition of "managers" in section 110(1) of the 1937 Act included the Order. That contention was plainly wrong. It was clear from Rules 10 and 11 of the 1961 Rules that the managers were responsible for the employment, suspension and dismissal of staff. Members of the Order could not be employed by themselves.

[76] There were a number of factors which undermined the Lord Ordinary's analysis. These were:

(1) not all of the staff at the school had been members of the Order; (2) the Order did not own the school; (3) the Order did not set up the school; (4) the Order played no part in the selection of pupils; (5) the Order had no responsibility for the care and welfare of the pupils; that responsibility attached to the managers; (6) none of the managers were members of the Order, as appeared from the list thereof contained in item 5 of the appendix; (7) there were no averments to the effect that the Order appointed the managers; (8) the Order did not employ staff at the school; (9) the staff were employees of the managers as appeared from the pursuer's own averments at pages 8C to D and 10A to B of the reclaiming print; (10) there was nothing in the pursuer's averments to show that the Order exercised day-to-day control over the activities of its members who were teachers at the school; and (11) as far as the 'drunk brother' incident was concerned, the head of the Order plainly had an interest in the situation regardless of control; that incident did not show day-to-day control on the part of the Order, or its head. Looking at all of the above factors, it was plain that the managers were in day-to-day control of the school; they were the operators of the school, not the Order.

[77] The second element in the Lord Ordinary's analysis was her examination of the scope of the alleged authority of members of the Order involved in teaching at the school, contained in paragraph [95] of her Opinion. Once again this matter was the subject of no pleadings by the pursuer. This part of the Lord Ordinary's analysis was misconceived, since the scope of the authority of an agent was relevant to the question of whether the agent could create a legal relationship between the principal and a third party. Nothing of that kind was involved here. Members of the Order were not in fact fulfilling an agency function. Accordingly, the issue of their authority as agents simply did not arise. In paragraph [95] of her Opinion, the Lord Ordinary considered the case of Lister v Hesley Hall Limited. However, that case had no bearing on the scope of the authority of an agent. It was concerned with the scope of the authority of an employee. The Lord Ordinary had expressly rejected a contention that the pursuer's averments were capable of supporting a case of vicarious liability on the part of the Order, based on an employer/employee relationship, as appeared from paragraph [93].

[78] Furthermore, the Lord Ordinary had erred in failing to notice that the legal status of the Order was such that a relationship of principal and agent could not arise between the Order and its members. The Order was an unincorporated voluntary association. As such it did not have a legal persona distinct from its members. There was no contract between a member of the Order and the Order itself. The constitution of the Order represented a contract between its members. Thus the Order could not be a principal in a relationship of agent and principal with its members. Nor could it enter into a contract with its members whereby an agency relationship was created. In this connection reliance was placed upon Harrison v West of Scotland Kart Club. The doctrine of vicarious liability necessarily required the existence of two separate legal entities, one of them acting on behalf of the other. However, in the present case the Order was not a separate legal entity and could not therefore be vicariously liable. In this connection reliance was placed on Carmichael v Bearsden and District Rifle and Pistol Club.

[79] Senior counsel finally turned to the decision of the Lord Ordinary to allow a preliminary proof on the question of the status and circumstances of the school managers, expressed in paragraph [141] of her Opinion. There was no proper basis for such an investigation, since the status of the managers was a matter of law. In paragraph [142] of her Opinion, the Lord Ordinary had allowed a preliminary proof before answer on time-bar issues in terms of both section 17(2)(b) and section 19A of the 1973 Act, on the terms outlined in paragraph [138] of her Opinion. The Lord Ordinary had given no reasons for the exercise of her discretion in that way, so this court would require to consider the issue de novo. It was submitted that the decision which she had reached was in fact appropriate, upon the assumption that there were averments relevant for enquiry, which there were not. A preliminary proof would be appropriate, since it would be very much shorter than a proof before answer on the whole of the issues in the case and might result in a determination. The cross-appeal should be refused.

Submissions by senior counsel for the eighteenth named defender

[80] Senior counsel began by adopting the submissions of junior counsel and relying upon the written submissions for the eighteenth named defender. The court should sustain this defender's first and fifth pleas-in-law and dismiss the action, so far as directed against him. It appeared that the pursuer was founding on two duties of reasonable care said to have been owed by the Scottish Education Department. There was no suggestion that the pursuer was advancing a case of breach of statutory duty against this defender. It was of interest to note that junior counsel for the pursuer did not respond to the submission for this defender that the alleged duty to take reasonable care to remove a pupil from the school was equivalent to take reasonable care to close the school. It had to be recognised that the Lord Ordinary had excluded Condescendences VIII and IX from probation, as appeared from paragraphs [127] and [139] of her Opinion. That part of her decision was not under challenge. Thus the pursuer had been forced into relying upon a case involving two alleged duties of reasonable care at common law. These were, first, the duty stated at page 58D to E in Condescendence X, at page 58 of the reclaiming print. It was submitted that the words "non-delegable" added nothing, as had been submitted to the Lord Ordinary. It was contended that the Scottish Education Department had not been subject to any common law duty of reasonable care owed to the pursuer. In any event, the duty alleged as a "non-delegable" duty in Condescendence X was stated as a duty of insurance, as opposed to one requiring the exercise of reasonable care. There was no basis whatsoever for such a duty. It may have been that the use of the phrase "non-delegable duty" may have created confusion in the mind of the Lord Ordinary and deflected her attention from fundamental legal principles. In her judgment, in particular, there was no consideration of the conventional criteria which had to be applied in any determination of whether the circumstances averred were sufficient to give rise to any duty of reasonable care. In particular, she had never applied her mind to a consideration of whether there existed between the Scottish Education Department and the pursuer a relationship of proximity, whether the necessary test of reasonable foreseeability had been satisfied and whether it was fair, just and reasonable for the court to hold that a duty existed. These considerations had been completely ignored. The second duty relied upon by the pursuer was averred at page 61A to D and 62B to C of the reclaiming print. Part of these averments had been excluded from probation by the Lord Ordinary. These passages were repetitive. They appeared to be stated as a duty to exercise reasonable care. In relation to these, it was submitted that the pursuer's averments of fact did not provide a sufficient basis for these duties. In particular, there were three reasons for that. First, there was no relationship of proximity between the pursuer and the Scottish Education Department. Secondly, it was not reasonably foreseeable that the pursuer might suffer harm if the duties averred against the eighteenth named defender were not obtempered. Thirdly, it was not fair, just and reasonable that such duties should be imposed by the court on the Department.

[81] Senior counsel went on to elaborate the foregoing submissions. He contended that the Scottish Education Department had had certain responsibilities to the public at large, but not to individual pupils in approved schools. Reference had been made to those public duties at page 59A to 60C of the reclaiming print. These were, in fact, duties or powers relating to the national system of approved schools for offenders and young people in need of care and protection at the material time. They showed that the Scottish Education Department had exercised general supervision over the system of approved schools. An Inspectorate played a part in informing the Scottish Education Department of relevant circumstances. Among these responsibilities was one to see if a child could properly be discharged from an approved school, in the light of progress made, in order to minimise detention at public expense. However, the Department had no part to play in relation to the care of individual pupils; that had been the responsibility of the managers of the relevant approved school. The statutory position of the Scottish Education Department and that of the managers pointed away from the conclusion that the Department had owed a duty of care to individual pupils. The circumstances were similar to those in X (Minors) v Bedfordshire County Council. The case involving Dorset County Council, reported as part of the whole report was pertinent. It was held that the aim of the statute under consideration was to provide, for the benefit of society as a whole, an administrative machinery to help one disadvantaged section of society. However, the defendant authority owed no common law duty in the exercise of the powers and discretions specifically conferred upon it by the statute.

[82] Looking at the terms of the 1937 Act, it was evident that the Scottish Education Department had had certain responsibilities for the general administration of the approved school system, which were specified particularly in the Second Schedule to that Act. But it was obvious from the detailed provisions of the Schedule, in particular paragraphs 1, 7, 9, 11 and 12 that the direct responsibility for care of pupils lay with the managers of particular schools. No meaningful analogy could be drawn with the prison system. If any particular duties of care were owed to individual pupils, those duties were owed by the managers of the school in which they were resident.

[83] Senior counsel then proceeded to make a series of submissions relating to the issue of proximity. First, counsel for the pursuer had drawn attention to the fact that, at the material time, the pursuer had been deprived of his liberty, in consequence of which he was resident at St. Ninian's School. She had contended that, because the State had deprived the pursuer of his liberty, it had also assumed responsibility for his welfare. Senior counsel submitted that such a broad concept of the State had no part to play in the law of fault and negligence; it was more apt in the context of human rights, with which this case was not directly concerned. In any event, it was not accurate to say that the appellant had been deprived of his liberty by the State. The depravation of liberty was a consequence of an order made by a court. While the prison system might properly be seen as the immediate responsibility of the State, approved schools were not, having regard to the legal structure within which they had been created. The Scottish Education Department had had no part to play in the deprivation of the appellant's liberty, nor had it established the approved school system; Parliament had enacted for that. All of the powers of the Scottish Education Department were discretionary and of a supervisory nature, with one exception, the duty which that Department had had to release pupils in certain circumstances. In the context of common law negligence, there never was a defender who was the State. If it was sought to establish liability against a public authority, the public authority had to be identified and the necessary criteria had to be satisfied.

[84] Secondly, when he was placed as a pupil in St. Ninian's School, the pursuer had not been put into the care of the Scottish Education Department in any meaningful sense. Nor had that Department established St. Ninian's School in particular. It did not manage or operate the school. In modern parlance, the Scottish Education Department might have been seen as a regulator. In the present action, the pursuer did not seek to attribute fault to the Scottish Education Department in a regulatory or supervisory capacity; rather the pursuer sought to make the eighteenth named defender liable in respect of breach of duties that had never been imposed upon the Department. In substance, the pursuer was attempting to make the Scottish Education Department liable for breaches of duties which had in fact been owed to the pursuer by others. The appellant was attempting to say that the common law might be used to innovate on the allocation of responsibilities which had been determined by the legislature. That was fundamentally wrong.

[85] Thirdly, Barrett v Enfield London Borough Council, relied on by the pursuer could be distinguished. The plaintiff, as a child, had been placed in the care of the defendant local authority pursuant to a care order when he was 10 months old and had remained there until the age of 17. That situation was, in no way, comparable with the circumstances of the appellant vis á vis the Scottish Education Department. The case was of no assistance in the present context.

[86] Fourthly, at page 60E to 61A of the reclaiming print the pursuer averred that he had been transferred to St. Ninian's School on 7 June 1963. The selection of the school was believed to have been made by the Scottish Education Department. The question arose of whether the relationship of proximity required as a basis for a claim by him against the eighteenth named defender could properly be based upon that alleged selection by the Department of St. Ninian's as the school to which the pursuer should be sent. It was submitted that it could not. In connection with this submission senior counsel made a number of observations. First, the duties alleged by the pursur against the Department were framed as owed to all children in approved schools. It was not expressed as a duty not to send children to St. Ninian's, but as a duty to remove children from the school, or exercise care for their welfare there. Thus there was a disconnection between the expression of the duties and the selection of the school. In any event, section 74 of the 1937 Act, properly construed required the court, after considering representations by the relevant education authority, to specify the approved school considered most suitable in the particular case. In that process, the Scottish Education Department had had no statutory role whatsoever. The pursuer's case did not appear to have been framed with regard to the statutory provisions. If the Scottish Education Department had been involved in any way, it could only have been in furnishing information concerning approved schools, so that the court might consider which school was suitable in a particular case. It could not be contended that, in performing that function, the Department had made itself into the pursuer's "neighbour" in the sense in which that word was used in the law of negligence. What appeared to be suggested was that the Scottish Education Department should not have made available the name of St. Ninian's School as a possible destination for a child who was to be made the subject of an approved school order. However, that amounted to a suggestion that approval of the school at all was inappropriate; yet, no such case was made. Further, if that was the approach followed by the pursuer, a question arose of when that posture should first have been adopted by the Scottish Education Department; that issue had a bearing on the question of causation. That question had not been addressed by the pursuer.

[87] Reliance by the pursuer on the case of Napier v The Scottish Ministers was completely misconceived. The case was concerned with conditions in prisons. Under section 1 of the Prisons (Scotland) Act 1989, it was provided that all powers and jurisdiction in relation to prisons and prisoners should be exercised by the Scottish Ministers. It was for that reason that counsel in that case had accepted that the Scottish Ministers were potentially responsible for the matters concerned.

[88] Senior counsel turned next to consider the observations of the Lord Ordinary in relation to the particular subject-matter of the submissions that he had been making. He pointed out that the issue of proximity had not been addressed directly in her Opinion at all. However, in paragraphs [112] to [118], the Lord Ordinary considered, under the heading of non-delegable duty of care, the position of the Department, represented by the eighteenth named defender. In paragraph [113], the Lord Ordinary appeared to rely on the decision of the House of Lords in Lister v Hesley Hall Limited, but that case had no relevance to the present circumstances, since it was concerned with what was or was not within the scope of employment of the alleged wrongdoer. In addition, in that paragraph the Lord Ordinary had quite inaccurately summarised what she conceived to be the factual background of the present case. Furthermore, she had fundamentally misunderstood the nature of the legislation relating to approved schools and the involvement of the Scottish Education Department. The facts were that the pursuer and other children were not allocated "by the Government to Government-created residential schools such as St. Ninian's." The pursuer and other children were the subject of approved school orders made by the courts. There was no sense in which St. Ninian's was a "Government-created residential school". St. Ninian's had been established essentially by interests connected with the Roman Catholic Church. If the circumstances to which the Lord Ordinary adverted in paragraph [113] were regarded by her as material, her decision must be seen as unsound, since it was based upon inaccurate facts.

[89] In any event, the Lord Ordinary appeared to have rejected what might be described as the traditional basis for liability and to have put something in place different from and going beyond that. Her decision was manifest judicial legislation. The last sentence of paragraph [113] appeared to suggest the existence of a duty of care incumbent upon a Government body, in circumstances where there was no fault. She had cited no authority which would justify such a view of the law. Even the pursuer's advisers did not support this part of her judgment. The pursuer's counsel had argued only for liability on the basis of failure to exercise reasonable care. The Lord Ordinary appeared to be attempting to use the concept of non-delegable duty to create no-fault liability on the part of the State. That was completely misconceived. The views expressed by the Lord Ordinary in paragraph [118] of her Opinion were very surprising. There appeared to be no attempt to endeavour to apply accepted legal tests for the existence of a duty of care. In addition, once again, the Lord Ordinary appeared to have misapprehended the decision in Lister v Hesley Hall Limited. She had completely ignored the statutory context within which the approved school system had operated and had equated a supervisory function with direct responsibility for the care and welfare of approved school pupils. There was nothing in the Lord Ordinary's Opinion to show that she had even considered the appropriate tests for the existence of a duty of care on the part of the Scottish Education Department. No such duty had been relevantly averred.

[90] Turning to the issue of foreseeability, senior counsel adopted the submissions of his junior. The averments in Condescendence VI did not support the assertion that the Scottish Education Department knew of systematic abuse taking the form of the regular and routine assault of pupils. The averments did not focus on what the Scottish Education Department inspection of St. Ninian's School had revealed, yet that was the only basis for knowledge on the part of the Department. In addition to that, no case had been formulated to the effect that the inspection of the school was defective.

[91] Senior counsel went on to consider the application of the "fair, just and reasonable" test. He drew attention to paragraphs 37 to 41 of the written submissions for the eighteenth named defender. Quaquah v Group 4 (Total Security) and the Home Office (23 May 2001; unreported) was of assistance. The claimant had been detained in an Immigration Detention Centre and was charged with offences of violent disorder arising from disturbances occurring there. Following his acquittal he brought an action of damages against the first defendant, as being vicariously liable for the defamatory allegation made by the detention officer employed by them, and against the Home Office, on the basis of a non-delegable duty to ensure the safety and wellbeing of those held in detention centres. Wright J. held that the claim against the second defendant, the Home Office, should be struck out as disclosing no sustainable cause of action. He observed that, if the submissions put forward on behalf of the claimant were sound, then it would follow that the Home Secretary would be under a wide-ranging liability for a number of persons and organisations over which he did not have, and never had had, any direct control. Such an accretion of responsibility was not necessary to ensure that detained persons were properly treated and would be able to recover compensation if they were not. Translating what had been said in that case to the present circumstances, rejection of the pursuer's case against the eighteenth named defender would not mean that he had no remedy. Plainly he would have had a remedy against the managers of St. Ninian's School, had he chosen to pursue it. For a body to be under a duty of care to others, it had to be shown that it was responsible for their care and welfare, as appeared from A v The Ministry of Defence and Another [2005] Q.B. 183. There could be a duty of care only where the claimant had suffered some injury while in an environment over which the defendant had had some control. The necessary precondition of control was important, as appeared from paragraph 47 of the Opinion of the Court. There was no averment made by the pursuer that the Scottish Education Department had been in control of the environment in St. Ninian's Approved School. In short, the pursuer's case failed in relation to all of the three tests which it would require to pass for a duty of care to be held to exist.

[92] Senior counsel next turned to deal with the issue of the alleged vicarious liability of the Department which the eighteenth named defender represented. He relied upon submissions of his junior and the written submissions. Essentially the points to be made were that, first, the pursuer made no averments explaining how the eighteenth named defender could be vicariously liable. The only attempt to do so had been the pursuer's averment at page 11B to C of the reclaiming print, in which it had been alleged that some of the staff who worked at the school had been employed by the eighteenth named defenders statutory predecessors, but that averment had been excluded from probation by the Lord Ordinary, so not only were there no relevant averments upon the basis of which vicarious liability might arise, but also it was evident from the statutory structure under which approved schools had operated that the only persons who might have been vicariously liable for the wrongdoing of members of the staff were the managers. In terms of the Rules of 1961, the managers employed the staff. What had been said by the Lord Ordinary in paragraph [111] of her Opinion was based on a mistaken interpretation of the 1961 Rules. Even if the Department had played some role in the selection of staff, it was not made clear why that should lead to the conclusion that the Secretary of State had been vicariously liable for the acts of the staff in the course of their employment. The essence of vicarious liability lay in the control exercised by the employer over the employee's work. There was nothing in the 1961 Rules to indicate that the Department had exercised any control over the day-to-day activities of staff in the school in the course of their employment. Furthermore, while selection of staff might, in certain circumstances, give rise to liability, no such case had been made in this action. The core of the Lord Ordinary's decision was to be found in paragraph [111] of her Opinion where she referred to the Scottish Education Department being regarded as "in some way involved in the employment of a monk such as Brother Benedict" then there might be liability for the abuse perpetrated by that monk. She considered that an enquiry into the position of the Department was appropriate. However, there was no basis whatever for this conjecture on the part of the Lord Ordinary. Once again, it had to be emphasised that the Lord Ordinary's reliance upon Lister v Hesley Hall Limited, in this context, was misconceived for the reasons already explained. The Lord Ordinary had not addressed the prior issue of the alleged legal basis for vicarious liability where no employment existed. As Lord Steyn said in paragraph 14 in that case, vicarious liability was a legal responsibility imposed on an employer, although he is himself free from blame, for a tort committed by his employee in the course of his employment. In all the circumstances no relevant case had been stated against the eighteenth named defender.

Submissions of senior counsel for the pursuer

[93] Senior counsel adopted the submissions already made on behalf of the pursuer and made reference to a skeleton argument prepared for him. The case raised important issues relating to time-bar, institutional abuse and also the position of the Scottish Education Department and Secretary of State for Scotland at the material time. Pleading defects ought not to stand in the way of an appropriate investigation of the pursuer's case. In any event, the pursuer's pleadings were not so deficient that it could be said that his case was bound to fail; accordingly a proof should be allowed. One of the principal questions which arose was whether the de La Salle Order could be held vicariously liable for the criminal acts of its agents, the brothers. It was submitted that their position as agents was a sufficient basis for such liability. The acts founded upon were sufficiently closely connected with the activities of the brothers as to involve vicarious liability in accordance with the decision in Lister and Others v Hesley Hall Limited.

[94] The question arose as to what was the proper form of procedure to be ordered in this type of case; whether there should be a preliminary proof, or a proof before answer with all pleas standing. It was submitted that especially in cases where there had been a conviction, the extreme stress for the claimant of having to give evidence twice and the huge delays which had built up meant that the most appropriate procedure would be the allowance of a proof before answer at large with all pleas standing.

[95] The salient facts of the case were clear. The pursuer had been a pupil in St. Ninian's Approved School between the ages of 9 and 12. He had been subjected to a brutal and sadistic regime throughout that time. Brother Benedict, the sixteenth named defender had been convicted in 2003 for various assaults upon the pursuer. The school had been run by brothers from the de La Salle Order to whom the Scottish Education Department had paid a lump sum subsidy. Members of the Order had been sent to work at the school. It was claimed that the Order had operated the school until the 1980s, according to its own solicitors. The headmaster had been a member of the Order. He was in de facto control of the school. The managers met only monthly and so the Order ran the school on a 24 hour, 7 day a week basis. Like many others, the pursuer had been silenced by the abuse to which he had been subjected and did not come forward until 1999 when he had read a newspaper report. He felt then for the first time that he might be believed. On account of suppressed memory and shame, the pursuer, like other persons in similar positions, had been unwilling and often unable to speak about their experiences until they felt confident that they would be believed. Not until 1999 had the pursuer become aware that his psychological problems were due to his treatment in the school.

[96] The issue of time-bar was the most important question in the case. The question for the court was whether the Scottish courts should follow the approach adopted in England to the equivalent of section 17(2)(b)(i) of the 1973 Act. The wording of the legislation in the two jurisdictions was different, but it was submitted that the effect was the same. Nevertheless it was recognised that the court had to proceed upon the basis of the Scottish legislation. There were both subjective and objective components in the statutory test applicable to Scotland as appeared from Prescription and Limitation, Johnston paragraphs 10.29 to 10.32. Some account had to be taken of the particular characteristics of the claimant in question. In section 17(2)(b) the words appeared

"the date ... on which the pursuer in the action became, or on which, in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to become, aware of"

the statutory facts. Looking at the first of the defined statutory facts, it also contained a subjective element, in that the words used were "that the injuries in question were sufficiently serious to justify his bringing an action of damages ... ". The question which arose was when, from the point of view of the pursuer, an abuse victim who was subject to the silencing effect of abuse, he was aware, or when it was reasonably practicable for him to have become aware that the injuries concerned were sufficiently serious to justify him going to a solicitor to commence an action. The answer to these questions was in 1999. In connection with this submission, reliance was placed on Catholic Care and Another v Young [2006] E.W.C.A. Civ. 1534. Senior counsel relied particularly on paragraphs 30, 34, 46 and 49. He contended that what had been said in that case was consistent with the view taken by Lord Glennie in M.P. v Sister Zoe O'Neill and Others in paragraphs [44] to [46] and [56] to [57]. The approach of Lady Smith in Jordan v Quarriers (10 October 2006; unreported) was similar. The basis of the partly subjective approach in the Scottish legislation was the words "him in all the circumstances", appearing in section 17(2)(b) of the 1973 Act. Summarising the position, senior counsel contended that the two Outer House cases referred to pointed in the same and correct direction. Lady Smith had not dealt with distinct and different injuries, such as had been the subject of decision in Carnegie v The Lord Advocate. In the present case there were averments of separate injuries. One thing that emerged from K.R. and Others v Bryn Alyn Community (Holdings) Limited showed was that the statutory limitation provisions raised fact-sensitive questions, which could only be determined after evidence had been heard on a case-by-case basis. The pursuer in the present case had had memories, but these had been suppressed. That did not suggest that he had considered the injuries sufficiently serious to justify raising an action.

[97] Senior counsel went on to focus attention upon the provisions of section 17(2)(b)(ii), which he said were of particular importance in this case. The pursuer's major injuries were psychological problems. In July 1999 he sought medical help relating to these matters. Only then had he come to realise that his problems were attributable to his treatment in St. Ninian's. If the pursuer had to have knowledge of all of the statutory facts, which was the case, and he had not known until 1999 that the major component of his injuries was attributable to the abuse, then time did not start to run until 1999. Carnegie v The Lord Advocate provided for support for this contention, particularly the observations of Lord Johnston at paragraphs 20 to 21. Under section 17(2), there could be different starting dates for different conditions.

[98] Finally, on the issue of time-bar it was submitted that there ought to be a proof before answer because the issues involved could not properly be dealt with on the pleadings alone. Even if the court were not prepared to allow a proof in relation to issues arising from section 17(2) of the 1973 Act, then the pursuer sought a proof in relation to section 19A. The delay which had occurred in the bringing of proceedings could be shown to be due to the nature of the injuries inflicted. It was a matter of balancing the equities in the case, but the pursuer's position was a very powerful one.

[99] Senior counsel moved on to consider the issue of the liability of the eighteenth named defender. He observed that there had been a change of front as compared with the position taken up before the Lord Ordinary. The arguments presented to her were narrated in paragraphs [40] to [44] of her Opinion. The pursuer's averments in relation to this matter were to be found in Condescendence X. The third sentence of that Condescendence had been formulated on the basis of New South Wales v Lepore [2003] H.C.A. 4. The pursuer's position was that the duty was one of reasonable care, not an absolute duty. The Scottish Education Department had had the requisite responsibility. The situation was comparable with that disclosed in Napier v The Scottish Ministers. The duty was one to exercise reasonable care. The duty in such cases as Napier v The Scottish Ministers arose, not because of prison legislation, but because there was a basic constitutional imperative that the State had an ongoing duty of care for the welfare of persons incarcerated by it. In all the circumstances the Lord Ordinary had been well entitled to reach the conclusion that she did.

[100] The eighteenth named defender relied on the single judge decision in Quaquah v Group 4 (Total Security) and Another. The decision in that case showed all the signs of being an extempore judgment. It did not address the considerable jurisprudence on non-delegable duty in the United Kingdom, Australia and Canada. The Lord Ordinary had dealt with non-delegable duty in paragraphs [112] to [119] of her Opinion. The fallacy of the approach of the eighteenth named defender was to rely on delegation by legislation to the managers and headmaster in order to say that there was no original duty of care. If the matter were looked at as suggested on behalf of the pursuer, then that legislation was simply a recognition by Government that it required to make provision for approved schools in fulfilment of its duty of reasonable care. That was delegation by legislation, but that did not remove the fundamental duty resting on the Government. In providing for approved schools by legislation, the Government had retained powers to give directions, to appoint inspectors and to remove approval from any school. The question had to be asked why that was so. It was because there was, in the legislation, a recognition of the overarching duty contended for.

[101] Senior counsel next turned to consider the issue of direct liability of the Scottish Education Department. This had been dealt with by the Lord Ordinary in paragraphs [102] to [104] of her Opinion. The high-water mark of the pursuer's case was to be found in Rule 4 of the 1961 Rules. In addition, the averments at pages 59 to 60 of the reclaiming print had to be taken into account. The powers retained by the Scottish Education Department had been considerable. The State had not passed over all its responsibilities and retained a duty of reasonable care. An inspector had been appointed to examine the school, as appeared from the pursuer's averments at pages 35C to 36D of the reclaiming print. There had been a Government failure to bring a brutal regime to an end. During the course of the debate there had been much reference to X. v Bedfordshire County Council and to the three tests enunciated in Caparo Industries plc v Dickman [1990] 2 A.C. 605. These matters had not been argued before the Lord Ordinary. However, it was submitted that those tests could be satisfied in the circumstances of this case. There was the necessary proximity, based upon the residual functions of the Scottish Education Department. As regards foreseeability, that test also could be satisfied since ill-treatment was one of those things which happened in such institutions. Finally, it was plainly fair, just and reasonable to recognise a duty on the Scottish Education Department, having regard to the special position of young persons placed in an approved school away from home and friends. There was also a need to hold the Government to account when the regime of managers that they had established was so fragile.

[102] Senior counsel then turned to consider the position of the first to eighth named defenders. He adopted the submissions which had been made by junior counsel. The Scottish Education Department had been funding the Order to run St. Ninian's Approved School, by providing the headmaster and staff. The Order sent their members to undertake this function and they operated and ran the school on a continuous basis. It was contended that they were in loco parentis to the pupils. The statutory managers were a remote body which met once a month. It had been contended on behalf of these defenders that the Order had not owned or established the school and had played no part in sending boys to it. It was said that they had had no responsibility for the care and welfare of the boys. That position had not been pleaded, which was very unfortunate. In this connection reference was made to Macdonald and Another v The Board of Management for Glasgow Western Hospitals. The precise arrangements in the school had not been made the subject of any averments.

[103] The pursuer also advanced an argument, which had been accepted by the Lord Ordinary, that there existed a vicarious liability for the actings of agents. The Lord Ordinary's conclusion on this matter in paragraphs [88] to [97] was sound. Reliance was placed on Dubai Aluminium Co. Ltd. v Salaam and Others [2003] A.C. 366. There was no reason why a principal should not be liable for the criminal acts of his agent as Gloag and Henderson suggested at paragraph 33.05.

[104] Dealing with further procedure, senior counsel suggested that there should be a proof before answer on the whole case with all pleas left standing. The form of investigation that might take place was at the discretion of the court. An important consideration was that giving evidence twice would be extremely stressful for the pursuer and should be avoided. There were certain dangers attached to a preliminary proof restricted to particular aspects of the case, since evidence led at such proof might require to be led again in a general proof, which would create difficulties if discrepancies occurred. In all the circumstances a general proof should be allowed.

The decision

The statutory structure of the approved school system

[105] In the course of the debate before us, and, in particular, in the context of the case made by the pursuer against the first to eighth named defenders, various assertions have been made regarding the part said to have been played by members of the Order in the running of St. Ninian's Approved School, at the material time. Furthermore, in discussion of the case sought to be made by the pursuer against the eighteenth named defender, certain submissions were made to us concerning the extent to which the Secretary of State for Scotland possessed powers in relation to approved schools, such as St. Ninian's. Against that background and having regard to the necessity of considering the application of the criteria by which it must be decided whether or not a duty of care was owed by the first to eighth named defenders, or the Scottish Education Department, to the pursuer, which were enunciated in Caparo Industries plc v Dickman, in my view, it is necessary to examine the statutory arrangements under which the approved school system operated at the material time. Only thus is it possible to identify where responsibility lay for the proper operation of such schools.

[106] These arrangements are to be found in the 1937 Act, as amended by the Criminal Justice (Scotland) Act 1963, and in the 1961 Rules, to which reference has already been made. Dealing first with the 1937 Act, it is to be noted that pupils in an approved school might have come to be there for several different reasons. Under section 61 of the Act, an approved school order might be made by any court by or before which a child or young person was found guilty of certain offences. Under section 62, the Secretary of State possessed the power to send certain juvenile offenders and others to approved schools. However, it is clear from the provisions of section 66 of the 1937 Act that the commission of an offence by a child or young person was not a necessary prerequisite for the making of an approved school order; such an order could be made by a juvenile court, if it was satisfied that the child or young person was in need of care or protection. Likewise, under section 68 of the Act, where a juvenile court was satisfied that the parent or guardian of a child or young person was unable to control that child or young person, the court was empowered to make an approved school order. Section 74 of the Act contained detailed provisions as to the contents of approved school orders. In such orders it was necessary to specify, among other things, the age and religious persuasion of the child or young person with respect to whom it was made.

[107] Sections 83 to 85 of the 1937 Act contained important provisions concerning the establishment of approved schools. Section 83(1) provided:

"(1) The managers of any school intended for the education and training of persons to be sent there in pursuance of this Act may apply to the Scottish Education Department to approve the school for that purpose, and the Scottish Education Department may, after making such enquiries as they think fit, approve the school for that purpose and issue a certificate of approval to the managers."

Under section 83(2), if at any time the Scottish Education Department were dissatisfied with the "condition or management of an approved school, or consider its continuance as an approved school unnecessary", they might by notice served on the managers withdraw the certificate of approval. Likewise, under section 83(3) the managers of the approved school might surrender the certificate of approval of the school. Section 83(4) provided that:

"No person shall in pursuance of this Act be received into the care of the managers of an approved school after the date of the receipt by the managers of the school of a notice of withdrawal of the certificate of approval of the school or after the date of a notice of intention to surrender the certificate ... ".

Under section 84 of the Act, it was provided that an education authority, or combination of education authorities might contribute sums of money "as they may think fit towards, the purchase, establishment, building, alteration, enlargement, rebuilding or management of an approved school ... ". Under section 85, the Scottish Education Department was empowered to

"classify approved schools according to the age of the persons for whom they are intended, the religious persuasion of such persons, the character of the education and training given therein, their geographical position and otherwise as they think best calculated to secure that a person sent to an approved school is sent to a school appropriate to his case ... ".

Under section 85(3) the provisions of the Second Schedule to the Act were given effect in relation to "the administration of approved schools and the treatment of person sent thereto." Under section 94 of the Act, education authorities named in an approved school order as being the authority within whose area the person to whom the order related was resident, or within whose area the offence was committed, or the circumstances arose rendering him liable to be sent to an approved school, were required to make in respect of that person "throughout the time during which he is under the care of the managers of an approved school" such contributions to the expenses of the managers as might be prescribed. Sections 106 and 107 of the 1937 Act contained certain supplementary provisions as to the position of the Secretary of State. Under the former enactment the Secretary of State and the Scottish Education Department might, for the purposes of their respective powers and duties under the enactment relating to children and young persons, appoint inspectors, who might be Inspectors of Schools. Under section 107 there were to be paid out of money provided by Parliament such sums on such conditions as the Secretary of State, with the approval of the Treasury, might recommend towards the expenses of the managers of an approved school.

[108] Section 110 of the 1937 Act is an interpretation section. It is important in the present context because it contains a definition of the word "managers" in relation to an approved school. The definition is in the following terms:

"'Managers', in relation to an approved school established or taken over by an education authority or by a joint committee representing two or more education authorities, means the education authority or the joint committee as the case may be, and in relation to any other approved school, means the persons for the time being having the management of control thereof; ... ".

The provisions of the Second Schedule to the 1937 Act relate exclusively to approved schools. Clause 1 of the Second Schedule authorises the making by the Scottish Education Department of rules for the management and discipline of approved schools. Furthermore the managers of any approved school were authorised to make supplementary rules for the management and discipline of the school, but such rules required to be approved by the Scottish Education Department. Clause 6 of the same Schedule provided, inter alia:

"(2) The Scottish Education Department shall, through their inspectors review the progress made by persons detained in approved schools with a view to ensuring that they shall be placed out on licence as soon as they are fit to be so placed out.

(3) The managers of the school may at any time by order in writing revoke any licence, and require the person to whom it relates to return to the school.

(4) For the purposes of this Act, a person who is out on licence from an approved school shall be deemed to be under the care of the managers of the school."

[109] Clauses 9 to 11 of the Second Schedule were concerned with discharge and transfer. Clause 9(1) of the Second Schedule provided as follows:

"The Scottish Education Department may at any time order a person under the care of the managers of an approved school to be discharged, or to be transferred to the care of the managers of another school ... ".

Clause 12 of the Second Schedule is of particular importance. It was in the following terms:

"12(1) Subject as hereinafter provided, all rights and powers exercisable by law by a parent shall as respects any person under the care of the managers of an approved school be vested in them: ...

(2) The managers of an approved school shall be under an obligation to provide for the clothing, maintenance and education of the persons under their care ... ".

[110] It is necessary also to note certain provisions of the 1961 Rules which are of importance in defining areas of responsibility. Rule 2 contains provisions concerning the requirements for managers to meet, to visit the school, for the purpose defined, that is to say, "to ensure that the conditions of the school and the welfare, development and rehabilitation of the pupils under their care are satisfactory." Rule 4 required the managers to "manage the school in the interests of the welfare, development and rehabilitation of the pupils ... ". Under Rule 10, it was the managers who, in consultation with the headmaster, determined "the number, type and qualifications of staff to be employed by them". They were also responsible for the appointment, suspension and dismissal of staff. The post of headmaster was to be filled by a person appointed by the managers, in terms of Rule 10(5); however, no person could be appointed to such a post without the prior approval of the Secretary of State. Under Rule 11(1) the headmaster was "responsible to the Managers for the efficient conduct of the school in the interests of the welfare, development and rehabilitation of the pupils." Finally, Rule 43 provided that it was the duty of the managers to place out on licence each pupil as soon as he had made sufficient progress.

[111] In my view, the legal characteristics and structure of the approved school system clearly emerge from the foregoing statutory provisions, which I consider require to be borne in mind in reaching conclusions in regard to the particular responsibilities of those involved in the system. First, the management and control of an approved school were the responsibility of the managers of that school. Pupils at such a school were under the care of the managers. There were vested in the managers all the rights and powers exercisable by law by a parent in relation to any person in the care of the managers in an approved school. The managers had a responsibility to ensure that the conditions of the school and the welfare, development and rehabilitation of the pupils under their care were satisfactory. They had a duty to manage the school in the interests of the welfare, development and rehabilitation of the pupils. The managers were responsible also for decisions relating to the staff at the school, who were to be employed by them. They were responsible for suspension and dismissal of staff, once appointed. The headmaster of the school, who was a member of its staff and employed by the managers, was responsible to them for the efficient conduct of the school in the interests of the welfare, development and rehabilitation of the pupils. In certain respects, reflected in my summary of the relevant legislation, the managers required the approval of the Secretary of State in relation to certain decisions. Furthermore, the Secretary of State was authorised to inspect approved schools through an Inspectorate. As regards the funding of approved schools the necessary resources were derived from the Secretary of State and local education authorities. That funding was then used by the managers to meet the various disbursements which they had to make.

The decision of the Lord Ordinary

[112] It is convenient at this point to notice the way in which the Lord Ordinary has dealt with the main issues in the case. Taking first the position of the first to eighth named defenders in relation to possible liability to the pursuer, her conclusion is expressed in paragraph [93], where she states that, while the pursuer's averments were insufficient to support a case of vicarious liability on the part of the Order, based on an employer-employee relationship, they were sufficient to support a case based on agency. In paragraph [94] the Lord Ordinary observes that, on the averments, the Order agreed to provide teaching, care and supervision services for the children at St. Ninian's. The Order delegated those functions to certain of its members. In carrying out their tasks, Brothers Benedict and Thadius were, in her view, acting as agents for their Order, rendering that Order liable for their acts carried out in the course of their agency. In her view, the ratio of Lister v Hesley Hall Limited applied, not only to a situation where the wrongdoer was an employee, but also where the wrongdoer was acting as agent for the Order. On this basis, the Lord Ordinary concluded that the pursuer was entitled to an enquiry in relation to the first to eighth named defenders.

[113] The Lord Ordinary then went on to consider the position of the ninth to fifteenth named defenders, the school managers. In the light of the fact that the pursuer has now abandoned this action, so far as directed against those defenders, it is unnecessary for us to say anything about that part of the Lord Ordinary's decision.

[114] The Lord Ordinary finally turned to consider the possible liability of the Scottish Education Department, the successors of which are represented by the eighteenth named defender. She considers this issue in three ways, first, by reference to what she calls direct liability, secondly, in relation to vicarious liability, and thirdly, under the heading of non-delegable duty of care. In connection with the first of these bases of liability, the Lord Ordinary considered the issue of foreseeability. She concludes in paragraph [104]:

"In my opinion, there is sufficient on record to entitle the pursuer to an enquiry into the facts in that the Scottish Education Department is averred to have had knowledge about certain deficiencies in the school which might reasonably foreseeably cause harm or injury to a child resident there."

On that basis alone, she concluded that there were averments relevant for inquiry in relation to that matter, although, in paragraphs [105] and [106], she excluded certain averments there specified from probation.

[115] The Lord Ordinary then went on to consider the issue of vicarious liability. In relation to this part of the case, in paragraph [111], she concluded:

"Accordingly the role played by the Scottish Education Department in the selection and remuneration of school staff cannot at this stage be dismissed as insignificant. If the Scottish Education Department were to be regarded as being in some way involved in the employment of a monk such as Brother Benedict, then the Scottish Education Department may be liable for any abuse perpetrated by that monk: cf. Lister, cit. sup. In my view, the question whether the Scottish Education Department could be viewed as involved in the employment of monks such as Brother Benedict is one of mixed fact and law which would best be answered after evidence has been led."

[116] The Lord Ordinary finally discussed the matter of non-delegable duty of care. She reaches her conclusion on that matter in paragraph [113] where she says:

"In the present case, I have ultimately concluded that the reasoning of the House of Lords in Lister v Hesley Hall Limited [2002] 1 A.C. 215, the developing jurisprudence relating to the concept of a non-delegable duty of care in certain contexts, and underlying policy reasons, make it necessary for the courts to recognise the existence of a common law non-delegable duty of care on the part of a government body such as that represented by the eighteenth defender in respect of children allocated by the government to government-created residential schools such as St. Ninian's. Such a non-delegable duty of care may be particularly relevant where it is not possible to establish more traditional liability such as direct or vicarious liability. In the context of a non-delegable duty of care, liability may arise even where there has bee no fault on the part of the government body."

In these circumstances the Lord Ordinary concluded that the pursuer had pled sufficient to entitle him to an inquiry in relation to this basis for liability.

[117] Dealing finally with the question of time-bar, the Lord Ordinary considered first the impact of section 17(2)(b) of the 1973 Act. In paragraph [134] the Lord Ordinary concludes:

"Against that background it is, in my view, not possible in the present case for the court to reach views about the statutory facts set out in section 17(2)(b)(i) to (iii) without some inquiry into the facts. I accept that the pursuer's averments are, on one view, confused and at times possibly self-contradictory. It may be that such a state of affairs is attributable to a lack of candour, as maintained by counsel for the defenders. Equally, however, the confusion and possible self-contradictions may be attributable to the effect which the abuse has had on the pursuer, and possibly also to changing attitudes and values in society."

In relation to the pursuer's case under section 19A of the 1973 Act, in paragraph [136] the Lord Ordinary concluded that a proof before answer would be appropriate.


The pursuer's case against the first to eighth named defenders

[118] For many years, the Scottish system of written pleadings has had, as its object, the giving to parties, whether pursuer or defender, of fair notice of the case which they require to meet. In certain kinds of litigation, in recent years, the system has been modified so as to require only a minimum of information as regards the case being made. However, in this action, the system must be operated in its established manner. It is with that in mind that I approach the averments made by the pursuer, with a view to seeing whether the criticisms made of them, on behalf of the first to eighth named defenders, are justified. A factor of relevance in this connection in the present case is that St. Ninian's Approved School was operated within the statutory framework which I have already outlined. The implication of that is that, to be relevant, any case made by the pursuer requires to be framed so as to recognise the existence and effect of the statutory provisions concerned and, in particular, the legal allocation of responsibilities among all those involved.

[119] The averments made on behalf of the pursuer concerning the alleged involvement of the first to eighth named defenders in the matters giving rise to this action are to be found in Condescendences I, II and VII. In Condescendence I there appear a series of averments in general terms concerning the de La Salle Order. Averments are also made concerning the position of the headmaster of St. Ninian's Approved School in terms of the 1961 Rules. Further, averments are made concerning the responsibilities within the Order of the first named defender in general terms. There follow certain averments concerning the payment of salaries of members of the Order who taught in what are described as similar schools in England. It is also averred that, in England, the Order received a lump sum per child from the Home Office. It is then averred as a matter of belief that similar arrangements were in place in Scotland. Finally, in this Condescendence reference is made to a letter dated 29 July 1999 from English solicitors acting for the first to eighth named defenders stating that the latter had "operated St. Ninian's School, Gartmore until its closure in the early 1980s".

[120] In Condescendence II, with some repetition of what has already been averred, the pursuer makes further general averments concerning the de La Salle Order. There then follow certain averments about events occurring on and after 6 November 1966 when it is said that "a monk disgraced himself by appearing drunk and behaving badly with some of the families present to visit their boys." Following that incident it is said that meetings took place between the Provincial and representatives of the Scottish Education Department.

[121] Finally, in Condescendence VII, it is averred that the defenders, apparently a reference to the first to eighth named defenders, had certain duties to care for the safety and welfare of children in the school, including the pursuer. There then follows this passage:

"The pursuer's loss, injury and damage was caused by the fault of the monks and other staff for whose acts or omissions the defenders are responsible.

The first to eighth defenders, as representatives of the Order, are vicariously liable for the actings of the members of their Order while furthering the cause of the Order at the school. The Order had an interest in the education of boys and supplied most of the teachers to the school. The Order supplied the headmaster to the school. The headmaster was in de facto control of the school. The Order is believed to have benefited financially by the association of its members with the school. The defenders, as employers of the monks and staff at the school, are also vicariously liable for their actions while in the course of their employment."

[122] It is appropriate to notice the first three pleas-in-law for the pursuer. Pleas 1 and 2 have been the subject of a partial determination by the Lord Ordinary, who has repelled those pleas, to the extent that they refer to breaches of statutory duty. Furthermore, plea-in-law 2 has been amended to delete reference to "employees" and to substitute in place of that word "persons". It is also appropriate to notice that the pursuer has made certain averments against the ninth to fifteenth named defenders, who were said to be the managers of the school. It is averred in Condescendence I that they had various responsibilities under and in terms of the 1961 Rules. It is said, among other things, that they were responsible for the management of the school in the interests of the welfare, development and rehabilitation of the pupils. They were responsible for the appointment, suspension and dismissal of staff. They required to visit the school at least once a month. It is upon these various averments and pleas-in-law that I require to determine the relevance of the pursuer's case against the first to eighth named defenders.

[123] During the course of the debate before us, as I have already narrated, senior counsel for the pursuer proposed an amendment to the pursuer's averments to be made in Condescendence I, following the reference to the letter of 29 July 1999. The terms of the proposed amendment have already been narrated. We decided to refuse leave to amend in the exercise of our discretion for several reasons. First, the proposal to amend came at a very late stage in the course of the present litigation. No comprehensible explanation was proffered as to why the proposal was first being made at that stage. In particular, no explanation was given as to why it could not have been made long ago. Secondly, the averment proposed was itself so uncertain in meaning, against the background of the statutory arrangements under which St. Ninian's Approved School had been operated, that we considered it itself to be objectionable for lack of specification. Thirdly, it was indicated to us that, if leave to amend were granted, the proposed amendment would require to be answered, which would have involved the discharge of the diet of reclaiming motion.

[124] I note that in paragraph [93] of her Opinion, the Lord Ordinary concluded that the pursuer's averments were insufficient to support a case of vicarious liability on the part of the Order, based on an employer-employee relationship. That part of her decision was not challenged by the pursuer and, accordingly, vicarious liability on that basis need not be further considered here. While the pursuer's plea-in-law 1 appears to suggest that a case is being made directly against the first to eighth named defenders, there do not appear to be any averments to support such a case. It is not clear that such a case was argued before the Lord Ordinary and it certainly was not argued before us. What is involved in plea-in-law 2 is a case of vicarious liability based upon the alleged fault of "persons for whom the defenders are responsible". Plea-in-law 3 also appears to involve a proposition that a form of vicarious liability exists in respect of assaults committed by members of the Order "while carrying out the purpose of the Order as condescended upon". Having considered the terms of these pleas and examined the averments made on behalf of the pursuer relating to the first to eighth named defenders, I find myself unable to identify any material in those averments which could, on any view, give rise to either direct liability, as contended for in plea-in-law 1, or vicarious liability, as contended for in pleas-in-law 2 and 3, on the part of those defenders. Since I have been unable, on the basis of the pursuer's averments, to identify any legal basis upon which he could succeed against the first to eighth named defenders, his case against them, in my opinion, is bound to fail. It must therefore be regarded as irrelevant. I have reached this conclusion without any regard to the averments made on behalf of the pursuer against the ninth to fifteenth named defenders. However, it is worth observing that there is an obvious conflict between the averments made in respect of the first to eighth named defenders and the other averments to which I refer. The factual averments made against these two sets of defenders are in several respects, mutually inconsistent as regards responsibility for the running of St. Ninian's School..

[125] It is also evident from averments made on behalf of the pursuer, particularly in Condescendence VII, that he alleges liability on the part of the first to eighth named defenders in respect of the fault of persons other than members of the Order. The reference to "other staff" in that Condescendence can only be so viewed. I am at a loss to understand how any such liability could exist. There are certainly no averments to suggest an answer to that problem.

[126] Furthermore, it appears to me that, in endeavouring to frame a case against the first to eighth named defenders, the pursuer's advisers have singularly failed to address the obvious problems created by the legislative provisions described above, relating to the managers of approved schools and of St. Ninian's Approved School in particular. Standing those detailed provisions, it is plain that responsibility for the management of the school lay with those who occupied the office of managers. They were the employers both of the staff at the school and of the headmaster at the school, who was responsible to them. While it may be that the first to eighth named defenders assisted the managers by recommending to them persons who they considered would be suitable members of the staff of the school, it is impossible to understand how their involvement could have lawfully extended beyond that. No case is made against them in regard to that function of recommendation. Furthermore, the statutory arrangements to which I have referred plainly involved the funding of the school being derived from the Scottish Education Department and local education authorities responsible for individual pupils in the school. That funding must necessarily have been paid to the managers of the school. However, the pursuer's averments do not begin to take account of these arrangements, though established by law.

[127] The Lord Ordinary has identified a basis upon which she considered that a case relevant for inquiry had been stated against the first to eighth named defenders. She describes that as a case of vicarious liability based on agency. In paragraph [94] of her Opinion she explains this part of her decision, stating that the Order

"agreed to provide, teaching, care and supervision services for the children at St. Ninian's. The Order delegated those functions to certain of its members. ... In carrying out their tasks, Brothers Benedict and Thadius were in my view acting as agents for their Order, rendering that Order liable for their acts carried out in the course of their agency."

In view of that conclusion, it is now appropriate to examine the basis for it.

[128] In the first place, there are no averments anywhere in the pursuer's pleadings of a case of vicarious liability based on agency. If the pursuer intended to make such a case, the requirements of fair notice inherent in the Scottish system of pleading would have required that, at least, the outline of such a case should have been pled. It has not. For that reason alone, I find that this part of the Lord Ordinary's decision is not soundly based.

[129] However, in my opinion, there are further insuperable problems in the face of such a case.

"Agency is a contract, express or implied, whereby one person, the principal, authorises another, the agent, to act on his behalf in a legal relationship between the principal and a third party." (The Mercantile Law of Scotland, McNeill and Lilley, 6th edition page 69).

Having regard to that definition of agency, which I consider to be accurate, I have insuperable difficulty in seeing how a relationship of agency could be thought to exist in the circumstances described in the pursuer's averments. While it might be possible that a member or members of an unincorporated association with no separate legal persona, such as the Order is, might be authorised to act as agent or agents on behalf of the other members of that association for the purpose of creating a legal relationship between the members of the association as a whole and a third party, I can discern nothing in the pursuer's pleadings to suggest that any such relationship was ever created between the managers of St. Ninian's School and the members of the Order as a whole, through the acts or agency of those members of the Order who must have been engaged by the managers as members of the staff at the school. While there is a reference in Condescendence VII to members of the Order "furthering the cause of the Order at the school" I cannot interpret that as involving the creation, through the agency of those members of the Order, of a legal relationship between the managers of the school and members of the Order as a whole. It appears from the averments of the pursuer and the legal statutory structure outlined above that the only purpose for which members of the Order were present in the school, as members of its staff, was not the creation of any legal relationship between the managers and the members of the Order as a whole, but rather the performance of contracts of employment between those particular members and the managers. For these reasons also, I consider that the Lord Ordinary's conclusion concerning a case based on agency, expressed in paragraph [93] of her Opinion, is unsound. Further, I am of the opinion that the characterisation in paragraph [94] of the Lord Ordinary's Opinion of Brothers Benedict and Thadius as acting as agents for the Order in carrying out their tasks in the school ill-founded, since it ignores the true nature of agency as described above.

[130] Arguments were advanced on behalf of the first to eighth named defenders based upon the circumstance that the Order is a voluntary unincorporated association. It was a feature of these arguments that because the Order had no legal persona distinct from its members, it could not be a principal in a relationship of agent and principal with its members. While an unincorporated association is neither more nor less than the sum of all of its members, who are all principals in the common enterprise of the association, I have difficulty in seeing why, in principle, particular identified members of such an association could not be constituted as agents for the whole of the membership for certain purposes. That certainly happens in fact, in relation to clubs which are voluntary unincorporated associations. In such a situation, the members would each be principals.

[131] A submission was also made to us on behalf of the first to eighth named defenders that the Lord Ordinary had erred in holding that principals are vicariously liable for delicts of their agents on the same basis as employers are vicariously liable for delicts committed by the employees. In that connection, reliance was placed on the dictum of Lord President Cooper in Mair v Wood at page 87 that

"it has never been laid down as a general proposition that all principals (as distinguished from employers) are liable for the negligence of their agents (as distinguished from servants) in the execution of their mandate."

In the course of the argument, controversy emerged as to the soundness of this view. However, since it is unnecessary for me to reach any conclusion upon it, I would prefer to reserve my opinion.

[132] Likewise, arguments were addressed to us regarding the relevance of Lister v Hesley Hall Limited to the circumstances of this case. In paragraphs [95] and [96] of her Opinion, the Lord Ordinary concluded that the ratio of Lister v Hesley Hall Limited was equally applicable to a situation where the wrongdoer was an agent, as opposed to an employee. It is quite clear to me that, in that case the House of Lords was considering the scope of the concept of vicarious liability of the employer for wrongs committed by an employee. I am unaware of any authority that would justify the application of the decision reached in that case to a situation in which the issue was the vicarious liability of a principal for a wrong committed by an agent. Indeed I have difficulty in envisaging how the ratio of the case could be relevant to a case of agency properly so called.

[133] In the whole circumstances, I am satisfied that the case sought to be made by the pursuer against the first to eighth named defenders is irrelevant and lacking in specification. Accordingly, the reclaiming motion of those defenders must be allowed; their plea-in-law two sustained and the action, so far as directed against them, dismissed.

The pursuer's case against the eighteenth named defender

[134] This part of the pursuer's case is formulated in Condescendence X. Certain parts of that Condescendence have been excluded from probation by the Lord Ordinary, specified in paragraph [140] of her Opinion. No challenge was mounted by the pursuer to that part of her decision. The averments of fact upon which that Condescendence would seem to be based are set out in Condescendence VI; once again a particular averment in that Condescendence has been excluded from probation by the Lord Ordinary and her decision in that regard has not been challenged. The averments of duty remaining as part of the pursuer's case are limited in scope. At page 58D to E it is said that

"It was their duty to take reasonable care for the safety and welfare of children in approved schools such as the pursuer. They were under a non-delegable duty to children in custody, who had been deprived of their liberty and removed from the care of their parents, to see that those children were not ill-treated, abused, harmed or injured and to see that they were kept safe."

The other averment of duty made against the eighteenth named defender is to be found at page 61C to D of the reclaiming print. It is there said that (the Scottish Education Department)

"had a duty to take reasonable care to remove boys such as the pursuer from said School once it had come to the Department's notice that said boys were being regularly and routinely assaulted."

An averment in almost exactly similar terms appears also at page 62B of the reclaiming print.

[135] In considering the relevance in law of the averments of fault made against the eighteenth named defender, it is necessary to have regard to the criteria by which such matters are now to be judged. In my opinion, these are to be found in Caparo Industries plc v Dickman and Others. It is perhaps sufficient to quote from that case two passages. First, at page 617 to 618 Lord Bridge of Harwich said this:

"But since the Anns case a series of decisions of the Privy Council and of your Lordship's House, notably in judgments and speeches delivered by Lord Keith of Kinkel, have emphasised the inability of any single general principle to provide a practical test which can be applied to every situation to determine whether a duty of care is owed and, if so, what is its scope ... What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical test, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope."

Second, at page 633, Lord Oliver of Aylmerton put the matter in this way:

"Thus the postulate of a simple duty to avoid any harm that is, with hindsight, reasonably capable of being foreseen becomes untenable without the imposition of some intelligible limits to keep the law of negligence within the bounds of common sense and practicality. Those limits have been found by the requirement of what has been called a 'relationship of proximity' between the plaintiff and the defendant and by the imposition of a further requirement that the attachment of liability for harm which has occurred be 'just and reasonable'. But although the cases in which the courts have imposed or withheld liability are capable of an approximate categorisation, one looks in vain for some common denominator by which the existence of the essential relationship can be tested. Indeed it is difficult to resist a conclusion that what had been treated as three separate requirements are, at least in most cases, in fact merely facets of the same thing, for in some cases the degree of foreseeability is such that it is from that alone that the requisite proximity can be deduced, whilst in others the absence of that essential relationship can most rationally be attributed simply to the court's view that it would not be fair and reasonable to hold the defendant responsible. 'Proximity' is, no doubt, a convenient expression so long as it is realised that it is no more than a label which embraces not a definable concept but merely a description of circumstances from which, pragmatically, the courts conclude that a duty of care exists."

[136] In Gibson v Orr 1999 S.C. 420, Lord Hamilton, as he then was, considered the issue of the application of the criteria just quoted in Scotland. He observed, at page 430D that the tripartite test had on a number of occasions been adopted and applied without challenge in Scotland. He went on to hold that that test now fell to be applied in Scotland "in personal injury actions based on a duty of care as well as in other actions of damages so based." He stated that he could discern

"no logical justification in modern circumstances and as the law has developed for applying a different test for the existence of a duty of care in respect of personal injury from that applicable to physical damage to property or to economic loss". (see page 431A to E).

[137] I feel bound to observe that we were afforded little assistance by counsel for the pursuer during the course of the debate before us as regards the application of the tripartite test to the circumstances of this case. Accordingly, one must endeavour to discern from the pursuer's pleadings some basis upon which it might be satisfied, as his case implies that it is. Looking particularly at the averments made in Condescendence X, it would appear that the pursuer's case against the eighteenth named defender focuses upon the position of the Scottish Education Department as an authority responsible for the general regulation and supervision of the approved school system. Plainly, under section 83(1) and (2) of the 1937 Act, the Department had the power of approving and withdrawing the certificate of approval of an approved school. Withdrawal of the certificate was authorised under section 83(2) if the Department were "dissatisfied with the condition or management of an approved school ... ". Furthermore, the Scottish Education Department plainly had powers to appoint inspectors of approved schools. Indeed, under clause 6(2) of Schedule 2 to the 1937 Act the Department had a duty, through their inspectors, to

"review the progress made by persons detained in approved schools with a view to ensuring that they shall be placed out on licence as soon as they are fit to be so placed out."

In addition, under clause 9 of the same Schedule, the Department had power to order

"a person under the care of the managers of an approved school to be discharged, or to be transferred to the care of the managers of another school ... ".

I consider that it is also important to recognise that under section 21 of the 1963 Act, the Secretary of State had the power to give to the managers of an approved school certain directions. That was authorised where it appeared to the Secretary of State

"that the provision made in any approved school with regard to any matter relating to the premises or equipment of the school, the number or grades of the staff employed in the school, or the education, training or welfare of persons under the care of the managers is inadequate or unsuitable".

The directions were such as the Secretary of State thought "necessary for securing that proper provision is made with respect thereto".

[138] I conclude from these provisions, in particular, that the Scottish Education Department had certain statutory responsibilities to review the progress, or lack of it, of persons detained in approved schools and, if appropriate, to give directions for the improvement of, among other things, the training or welfare of persons under the care of the managers. Their powers were, however, essentially supervisory and clearly involved the exercise of discretion. In this connection, during the course of the debate before us, the eighteenth named defender relied upon X v Bedfordshire County Council. Having considered the facts of the various cases that were the subject of decision there, I am not persuaded that they are sufficiently similar to the facts of this case as to make that decision of direct assistance. However, as will be seen, some important principles considered in the case are plainly applicable to this case as to many others. Nor do I find the circumstances of K.L.B. and Others v The Province of British Columbia of immediate assistance in considering the position of the eighteenth named defender under the terms of the legislation to which we have referred. Further, Napier v The Scottish Ministers is of no assistance in the context of this case. It was concerned with the position of prisoners in a prison, for which the Scottish Ministers had direct responsibility. At paragraph 92 of Lord Bonomy's Opinion, it was narrated that the respondents accepted that they had a duty to take reasonable care for the health and safety of prisoners, such as the petitioner. In this case, the existence of a duty owed by the Scottish Education Department to the pursuer is the subject of controversy. Barratt v Enfield London Borough Council was relied upon by the pursuer. The plaintiff in that case claimed damages for personal injury arising out of negligence by the authority in whose care he had been placed, pursuant to a care order, when he was 10 months old. The plaintiff's claim had been struck out as disclosing no reasonable cause of action, a course upheld by the Court of Appeal. However, the House of Lords allowed the appeal holding, among other things, that, in all but the clearest cases, it was important to see on the facts proved whether what was alleged was justiciable; that the plaintiff's case was far from clear and, moreover, in addition the question whether it was fair, just and reasonable to impose a duty of care was not to be decided in the abstract, on the basis of assumed hypothetical facts, for all the acts or omissions of a statutory authority, but on the basis of what had been proved. The appeal was allowed. While I consider that there are certain features of that case which resemble those of the present, it has to be recognised that that decision was taken against the background of the English system of pleading. I do not consider that it can be regarded as undermining the requirement in Scottish pleading that the claimant must state a relevant case, that is to say, a case which is not bound to fail.

[139] The pursuer placed reliance on Costello-Roberts v The United Kingdom. Having considered that decision of the European Court of Human Rights, I am satisfied that it is of no assistance in the present circumstances. It was exclusively concerned with issues concerning the violation of Articles 3, 8 and 13 of the European Convention on Human Rights and Fundamental Freedoms. It was not concerned with the existence of delictual duties. The eighteenth named defender relied upon Quaquah v Group 4 (Total Security) and the Home Office. The circumstances giving rise to that case concerned the position of persons detained in Immigration Detention Centres and the possible responsibility of the Home Office for their care and wellbeing. I find that those circumstances are so far removed from those of the present case, with a different background of legislation, that the decision is not of assistance. A. v The Ministry of Defence and Another featured in the debate before us. In it, the Court of Appeal held, among other things, that although the general rule at common law was that a defendant was liable for the negligent act of a servant committed in the course of his employment, but not that of an independent contractor, a defendant might, in various circumstances, exceptionally be fixed with a personal duty to exercise reasonable care which he could not delegate, but only where the claimant suffered injury while in an environment over which the defendant had control. I do not find the decision in that case helpful, since the circumstances in which the pursuer here alleges that he suffered personal injuries were not, in any reasonable sense, within the control of the Scottish Education Department. He was a pupil in an approved school administered and controlled by the managers of that school. In The State of New South Wales v Lepore, the High Court of Australia was concerned with the issue of whether a school authority had been in breach of a non-delegable duty of care in respect of an alleged sexual assault on a pupil by a teacher. While, in due course, I shall have something to say about non-delegable duties of care, at this stage in this Opinion I cannot regard the decision as of assistance in connection with the issues which are currently being addressed, on account of the markedly different situation in which that claim arose, as compared with the present litigation.

[140] Following upon this review of the foregoing authorities and the features of this case, it is appropriate now to return to the application of the tripartite test explained in Caparo Industries plc v Dickman. An important aspect of that test is, of course, the foreseeability of damage. The only duty of care averred here in particular terms is that to which we have referred, being one

"to take reasonable care to remove boys such as the pursuer from said school once it had come to the Department's notice that said boys were being regularly and routinely assaulted."

That requires attention to be focused on the pursuer's averments regarding the state of knowledge of the Department. The question must be whether any of the averments made by the pursuer, if proved, could demonstrate that it had come to the Department's notice that boys at St. Ninian's School were being "regularly and routinely assaulted." The conclusion I have reached is that the averments made on behalf of the pursuer in Condescendence VI, if established, would not give rise to actual awareness on the part of the Department that boys were regularly and routinely being assaulted. In that connection, averments that complaints or allegations were made are simply not sufficient. In these circumstances, I hold that the first ingredient of a relevant case against the eighteenth named defender is not present. Perhaps more importantly and in any event, looking at the other ingredients of the tripartite test, proximity and the requirement that it would be fair, just and reasonable that the law should impose the duty contended for on the Scottish Education Department, I am not satisfied that those requirements have been met either in the circumstances of this case. The position of the Department was essentially that of a supervising agency or regulatory agency in the context of the approved school system. As such, it clearly had a discretion as to the extent to which and the methods by which, it performed its duties. As was observed by Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council at pages 731-732:

"Although the question is one of statutory construction and therefore each case turns on the provisions of the relevant statute, it is significant that your Lordships were not referred to any case where it had been held that statutory provisions establishing a regulatory system or a scheme of social welfare for the benefit of the public at large had been held to give rise to a private right of action for damages for breach of statutory duty. Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being for those individuals but for the benefit of society in general."

[141] Of course, as was observed by Lord Browne-Wilkinson at pages 735 to 736 in the same case, a common law duty of care may arise in the performance of statutory functions:

"But a broad distinction has to be drawn between: (a) cases in which it is alleged that the authority owes a duty of care in the manner in which it exercises a statutory discretion; (b) cases in which a duty of care is alleged to arise from the manner in which the statutory duty has been implemented in practice ... The distinction is between (a) taking care in exercising a statutory discretion whether or not to do an act and (b) having decided to do that act, taking care in the manner in which you do it ... It is clear both in principle and from the decided cases that the local authority cannot be liable in damages for doing that which Parliament has authorised. Therefore, if the decisions complained of fall within the ambit of such statutory discretion they cannot be actionable at common law. However, if the decision complained of is so unreasonable that it falls outside the ambit of the discretion conferred upon the local authority, there is no a priori reason for excluding all common law liability."

[142] Looking to these principles, there is no part of the pursuer's case in which an attempt is made, as against the eighteenth named defender, to aver that the Scottish Education Department made any decision so unreasonable as to fall outside a statutory discretion. As regards the kind of situation described in category (b) by Lord Browne-Wilkinson, no case is made against that Department alleging a lack of reasonable care in the practical implementation of a statutory duty. In any event, the responsibility for the practical implementation of statutory duties in relation to St. Ninian's School lay, not with the Scottish Education Department, but with the managers of the school, who were creatures of statute. It would have been entirely appropriate that they should have had imposed upon them certain common law duties of care in relation to pupils in the school, but issues relating to their position are academic, in a situation in which they have been released from the present action.

[143] I turn now to consider the issue of possible vicarious liability of the Scottish Education Department for the fault of others. In this connection it is to be noted that at page 11B to C of the reclaiming print the pursuer averred that: "Some of the staff who worked at the school were employed by the eighteenth defender's statutory predecessors." However, as appears from paragraph [140] of her Opinion, the Lord Ordinary has excluded that averment from probation, which part of her decision has not been challenged on behalf of the pursuer. Thus, whatever else might be thought to be the basis of any vicarious liability on the part of the eighteenth named defender, it could not be vicarious liability for the fault of an employee. Furthermore, Rule 10 of the 1961 Rules very plainly indicates that the managers of the school were employers of staff required to work there. Rule 10(1) refers to "staff to be employed by them". In addition, Rule 10(2) refers to the managers being responsible for "the appointment and, subject to the provisions of section 81 of the Education (Scotland) Act 1946, suspension and dismissal of staff." The pursuer has made no averments to show that the arrangements for the employment of staff enshrined in the 1961 Rules were not adhered to at St. Ninian's. Even if he had, it would have been difficult to accept that the position of the managers, as described in legal enactment, could have been departed from voluntarily.

[144] The Lord Ordinary deals with the matter of vicarious liability in paragraphs [107] to [111] of her Opinion. In paragraph [107] she states that the inference from the pursuer's pleadings in Condescendence I is that the Scottish Education Department paid a subvention to the Mother House of the de La Salle Order in Oxford in order to obtain the teaching and curatorial services of monks. In the first place, I can see no proper basis in the pursuer's averments or in the statutory structure within which approved schools operated to justify that conclusion. Albeit that the pursuer makes averments of what occurred in England as regards the payment of salaries of monks who taught in similar schools and that in England the Order received a lump sum per child from the Home Office, these averments cannot give rise to the conclusion that similar arrangements existed in Scotland. As I have already made clear, in terms of section 94 of the 1937 Act, certain education authorities were obliged to pay prescribed contributions to the expenses of the managers of an approved school in respect of a relevant resident. More particularly, under section 107 of the 1937 Act there were to be paid out of money provided by Parliament

"Such sums on such conditions as the Secretary of State with the approval of the Treasury may recommend towards -

(i) the expenses of the managers of an approved school;

(ii) the expenses of an education authority in respect of children and young

persons committed to their care.;".

I am unaware of any other basis upon which the Scottish Education Department might lawfully have made payments in respect of an approved school, and, in particular, to a third party, such as the Order. In paragraph [111] of her Opinion the Lord Ordinary says:

"Accordingly, the role played by the SED in the selection and remuneration of school staff cannot at this stage be dismissed as insignificant. If the SED were to be regarded as being in some way involved in the employment of a monk such as Brother Benedict, then the SED may be liable for the abuse perpetrated by that monk: cf. Lister, cit. sup. In my view, the question whether the SED could be viewed as involved in the employment of monks such as Brother Benedict is one of mixed fact and law which would best be answered after evidence has been led."

I regret that I can find no basis in the averments of the pursuer to justify the view that the Scottish Education Department could be regarded as being "in some way involved in the employment" of staff at St. Ninian's School. In any event, that view is apparently inconsistent with the Lord Ordinary's exclusion from probation of actual employment. The payments which the Department were authorised to make under section 107 of the 1937 Act certainly could not give rise to any relationship of employment. The payments were to be made to the managers, not to the staff, or the Order. In my view, the Lord Ordinary has strayed into the field of mere conjecture in this paragraph. Accordingly, I regard her decision to allow inquiry in that regard as unsound. Furthermore, her reference to Lister v Hesley Hall Limited appears to me to be beside the point. As I have already indicated, that case was concerned with the extent of the scope of the employment of an employee and whether it embraced unlawful conduct. However, in this context I am not concerned with that matter; I am concerned as to whether there is any basis for a conclusion that a relationship of employment existed.

[145] I turn next to the issue of non-delegable duty of care, a topic with which the Lord Ordinary deals in paragraphs [112] to [119] of her Opinion. I have to say at the outset that I have had difficulty in understanding why the Lord Ordinary has treated the issue of non-delegable duty of care separately from the issue of direct liability. It appears to me that, in considering whether any duty of care existed, owed by the Scottish Education Department to the pursuer, delegable or non-delegable, the same criteria, outlined in Caparo Industries plc v Dickman, must be applied. Yet the Lord Ordinary has not approached either the issue of direct liability, or that of a non-delegable duty of care in that way. It may be, however, that her approach to these matters is a reflection of the arguments that were, or more particularly, were not addressed to her.

[146] The existence of non-delegable duties has been a feature of Scots law for many years. In this connection we refer to English v Wilson's & Clyde Coal Company 1937 S.C. (H.L.) 46. Thus there is nothing novel about such duties. In paragraph [113] of her Opinion the Lord Ordinary says:

"I have ultimately concluded that the reasoning of the House of Lords in Lister v Hesley Hall Limited [2002] 1 A.C. 215, the developing jurisprudence relating to the concept of a non-delegable duty of care in certain contexts, and underlying policy reasons, make it necessary for the courts to recognise the existence of a common law non-delegable duty of care on the part of a government body such as that represented by the eighteenth defender in respect of children allocated by the government to government-created residential schools such as St. Ninian's. Such a non-delegable duty of care may be particularly relevant where it is not possible to establish more traditional liability such as direct or vicarious liability. In the context of a non-delegable duty of care liability may arise even where there has been no fault on the part of the government body."

A number of points must be made in relation to that reasoning. The first is that, in my view, Lister v Hesley Hall Limited is of the nature that I have already described and has no part to play in this aspect of the case. Further, the Lord Ordinary's reference to "children allocated by the government to government-created residential schools such as St. Ninian's" appears to me to be based upon a serious legal and factual misunderstanding. Children were not "allocated" to approved schools "by the government", but rather principally by reason of court decisions making approved school orders. Beyond that, it is plainly inaccurate to refer to St. Ninian's as a "government-created residential school", since the government played no part in the establishment of the school. The Scottish Education Department plainly issued a certificate of approval to the school, but that can only be seen as an exercise of the discretion conferred upon the Department by section 83 of the 1937 Act. Finally, in this connection, I have difficulty in understanding exactly what the Lord Ordinary is saying in the last sentence of paragraph [113]. The distinction which she draws, in this context, between direct liability and a non-delegable duty of care eludes me. As I have already said, the same criteria must be applied in a consideration of whether any duty exists, whether that duty is to be seen as delegable or non-delegable.

[147] In paragraph [118] of her Opinion the Lord Ordinary characterises the statutory structure under which approved schools operated as, in some way involving delegation "to others such as unpaid members of the community performing what might be seen as civic duties", presumably a reference to the managers of an approved school. I cannot agree with this characterisation. The system of approval of approved schools reflected in the terms of sections 83 and 84 of the 1937 Act involved the managers of any school intended to be used as such applying to the Scottish Education Department for approval, or the provision of an approved school by an education authority, or a combination of education authorities. There was no question of the Scottish Education Department delegating any existing responsibility to anyone. Parliament created the provisions to which I have referred, with the intention that the schools to be approved should be established by others than central government, but recognising that central government had a part to play in the approval and general supervision of the establishments so created. Reading the terms of paragraph [118] of the Lord Ordinary's Opinion, I am driven to conclude that the premise from which her consideration started was that central government ought to be liable for the consequences of abuse, such as that which is said to have occurred here. However, that is plainly to beg the question of whether such liability can be recognised by reference to accepted legal principles. Accordingly, I am of the view that the Lord Ordinary's decision to allow inquiry into this aspect of the case is also unsound.

[148] Having considered these various possible bases of liability on the part of the eighteenth named defender, I conclude that the pursuer has not stated a relevant case against this defender. Accordingly, his action against this defender falls to be dismissed.


Limitation

The pursuer's averments

[149] The starting point for any consideration of this part of the case must be an examination of the averments made by the pursuer pertinent to the issue arising. As regards the particular injuries said to have been inflicted upon him, the averments concerned are to be found in Condescendences III and IV. Prominently these averments narrate a series of many assaults, beginning with one by Brother Thadius committed on the pursuer's arrival at the school. Thereafter, reference is made to the sixteenth named defender forcing the pursuer to have a cold shower, using a scrubbing brush to clean him and handling his penis. He was told to stay in the shower, when the lights were switched off. The pursuer was left naked in the shower in the dark for several hours. On another occasion, the pursuer was forced to eat a pudding, with the sixteenth named defender holding him by the hair and forcing a spoon into his mouth, in consequence of which the pursuer vomited. He was also forced to eat the pudding mixed with his own bodily fluids. On a number of occasions the sixteenth named defender hit the pursuer and other boys on the back of their thighs with rubber laces. The consequences were such that the pursuer was unable to sit down following these assaults. This defender also assaulted the pursuer and other boys by sitting on or kneeling on their stomachs with his whole weight, as a result of which he was unable to breathe. The pursuer also avers that: "The sixteenth defender regularly punched and kicked the pursuer on all parts of his body." He goes on to aver that Brother Thadius hit boys, including himself, under the chin when they were speaking, causing them to bite their tongues or cheeks. The pursuer also avers that boys, including himself, were assaulted on a daily basis, being punched, kicked and hit with implements including sticks, rulers and wooden ladles. He claims that the treatment he describes rendered him very afraid, with the result that from time to time he was incontinent. It is quite obvious that the assaults described in the averments which I have just summarised were of a serious nature. Indeed some of them have been the basis of the High Court prosecution against the sixteenth named defender.

[150] Averments which are pertinent to the issue of limitation are to be found in Condescendences XI and XII. In the former, the pursuer avers that he was injured by the assaults he sustained. He suffered trauma and damage. He then continues:

"The treatment endured has affected the pursuer's life. The pursuer felt powerless and frustrated. The pursuer reacted to the assaults by determining that from then on he would retaliate against aggressors. The pursuer became involved in trouble with the police. He suffered regular periods of incarceration for violence. He became violent because of his anger at the abuse he suffered from Brother Benedict in particular. The pursuer was incarcerated on many occasions until about 1990 ... The pursuer has suffered psychologically. He was depressed as a 12 year old. He formally suppressed memories, but now the memories are intruding in his thoughts."

He goes on to aver that he has suffered in particular since about 1999 when he read an article about the abuse of another boy in the same school.

[151] In Condescendence XII, the pursuer in his averments endeavours to deal with the problems created for him by section 17 of the 1973 Act. It is necessary to observe that, in many respects, the averments made in the Condescendences which I have summarised and in Condescendence XII itself are vague, lacking in specification and, in certain respects, contradictory. In Condescendence XII the pursuer avers that he "suppressed memories". He "remembered many of the occasions of abuse at the school but put them to the back of his mind." He also believes that other incidents of abuse occurred which he is unable to recall. He avers that he did not begin to require medical attention in relation to the intrusive memories until about 1999. The present action was raised in May 2000, within the triennium set out in the Prescription and Limitation (Scotland) Act 1973, section 17. He was diagnosed as suffering from severe depression and chronic PTSD (Post Traumatic Stress Disorder) which was completely disabling in May 2002. Section 17(2) (three year limitation) did not apply in the three year period after the pursuer attained his majority. It did not apply until 1999 when the pursuer began to require medical attention in relation to the intrusive memories and when he contacted solicitors following the publication of a newspaper article. The pursuer did not become aware, nor was it reasonably practicable for him in all the circumstances to become aware of the facts (i) that the injuries were sufficiently serious to justify his bringing an action of damages and (ii) that the injuries were attributable in whole or in part to an act or omission until 1999. There follow certain averments introduced by amendment to the pursuer's pleadings at the commencement of the hearing. These averments relate to the alleged consequences of institutional childhood abuse, which, it is claimed,

"has the effect of silencing victims, including the pursuer ... the vast majority of abuse sufferers, including the pursuer, suppress memories of the abuse and get on with their lives ... Such silencing and suppression meant that they, including the pursuer, were not aware that their injuries were sufficiently serious to justify them bringing an action of damages until well into adulthood. As averred the pursuer was not aware until 1999 in relation to physical abuse and until 2002 in relation to severe depression and chronic PTSD."

In addition, there are certain averments in which the pursuer seeks to invoke the provisions of section 19A 1973 Act in support of his plea that it would be equitable to allow the present action to be brought, even though time barred. In the course of these averments the appellant states that he had told his mother of the regime at the school, but she took no action. He continues:

"The pursuer suppressed memories. He remembered many of the occasions of abuse at the School but put them to the back of his mind. He put the memories to the back of his mind as a way of coping with what had happened to him ... In about May 1999 the pursuer read in the media that Christopher Ferns had alleged abuse during his time in the school. The media showed interest in the story. The article unlocked memories which the pursuer had suppressed. He required medical attention in relation to the intrusive memories for the first time in 1999. He was diagnosed as suffering from severe depression and chronic PTSD which is completely disabling in May 2002."

[152] In the same Condescendence the pursuer avers that the sixteenth named defender was tried in the High Court of Justiciary at Edinburgh in June 2003 on various charges, one of which related to assaults by him on the pursuer. He claims that any delay in taking legal action was attributable to his experiences at the hands of those said to be responsible in the present action.

[153] In Answer 12 for the eighteenth named defender, that defender has made averments about an assault and breach of the peace committed by the pursuer in May 1996, in respect of which he was convicted in Alloa Sheriff Court on or about 2 September 1996. These averments continue:

"Following this incident the pursuer was referred to the Community Mental Health Team at Clackmannan County Hospital on or about 13 June, 1996. It was this referral that led to the diagnosis that the pursuer was suffering from depression and an emotionally unstable personality disorder ... He was able to discuss his personal history with the mental health team. A report by a team member to the pursuer's GP in August 1996 records that his childhood was extremely violent. It records that he attended the School, though that report does not contain any specific reference to abuse at the School. The Social Enquiry Report for an appearance at Alloa Sheriff Court on 30 September, 1996 refers to the fact that the pursuer and his brother attended the School (there referred to as Gartmore): it continues: 'Mr. (McE) [i.e. the pursuer] described the bizarre and awesome punishment regime which he remembers as having been in force at the time. Mr. (McE) remained there for three years'".

[154] The pursuer responds to these averments in Condescendence XII. He admits that a Social Enquiry Report was prepared at the time in question and that it contained the words quoted, subject to his succeeding explanation. His explanation is in these terms:

"Explained and averred that the pursuer was required to attend for a Social Enquiry Report in respect of the offence committed in 1996. He was described as 'clearly very tense during interview'. He was noted still to be suffering from the recent death of his mother. The words 'bizarre and awesome punishment regime' are the words of the Social Worker and not the pursuer. The pursuer told the Social Worker of systematic abuse but the Social Worker was not interested."


The statutory provisions

[155] In view of the arguments which were addressed to us, it is important to examine the particular statutory provisions which bear upon the issue being considered. These are, of course, section 17 of the 1973 Act, as substituted by section 2 of the Prescription and Limitation (Scotland) Act 1984. Section 17 is in these terms:

"17(1) This section applies to an action of damages where the damages claimed consist of or include damages in respect of personal injuries, being an action (other than an action to which section 18 of this Act applies) brought by the person who sustained the injuries or any other person.

(2) Subject to subsection (3) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of three years after - (a) the date on which the injuries were sustained or, where the act or omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is the later; or (b) the date (if later than any date mentioned in paragraph (a) above) on which the pursuer in the action became, or on which in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to become, aware of all the following facts -

(i) that the injuries in question were sufficiently serious to justify his

bringing an action of damages on the assumption that the person against whom the action was brought did not dispute liability and was able to satisfy decree;

(ii) that the injuries were attributable in whole or in part to an act or

omission; and

(iii) that the defender was a person to whose act or omission the injuries

were attributable in whole or in part or the employer or principal of such a person.

(3) In the computation of the period specified in subsection (2) above there shall be disregarded any time during which the person who sustained the injuries was under legal disability by reason of non-age or unsoundness of mind."

[156] In the debate before us there was considerable discussion of cases decided under the statutory provisions which operate in England as regards limitation in relation to actions of damages for negligence. It is appropriate to note their terms. These are sections 11 and 14 of the Limitation Act 1980. They provide, so far as material:

"11(1) This section applies to any action for damage for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person ...

(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) ... below.

(4) ... the period applicable is three years from -

(a) the date on which the cause of action accrued; or

(b) the date of knowledge (if later) of the person injured.

...

14(1) ... In section 11 ... of this Act references to a person's date of knowledge are reference to the date on which he first had knowledge of the following facts

(a) that the injury in question was significant; and

(b) that the injury was attributable in whole or in part to the act or

omission which is alleged to constitute negligence, nuisance or breach of duty; and

(c) the identity of the defendant ... and knowledge that any acts or

omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

(3) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire -

(a) from facts observable or ascertainable by him or

(b) from facts ascertainable by him with the help of medical or other

appropriate expert advice which it is reasonable for him to seek;

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice."

[157] Consideration of these two sets of provisions shows that there are important differences between them. First, in section 17(2)(b) of the 1973 Act, which provides for what I might call the alternative notional starting date for the running of time, alternative to the actual starting dates provided for in section 17(2)(a), Parliament has provided for a date on which the pursuer in the action actually became aware of the statutory facts listed in section 17(2)(b)(i), (ii) and (iii), or on which notional awareness of those facts is to be attributed to him. The structure of that provision is, in no way, replicated in sections 11 and 14 of the 1980 Act. In section 14(1) there is no provision defining a notional date of knowledge, although subsection 14(3) provides, in effect, for notional knowledge, but in a very different way from the provision to be found in section 17(2)(b) of the 1973 Act.

[158] Second, in section 17(2)(b)(i), where the first of the statutory facts is defined, the words used are that "the injuries in question were sufficiently serious to justify his bringing an action of damages ... ", on the stated assumptions. In section 14(1) of the 1980 Act, the words used include "the injury in question was significant". Section 14(2) defines when "an injury is significant". It has that quality "if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages" on certain assumptions.

[159] It is, I consider, recognised that the Scottish provisions quoted embrace an element of subjectivity. As I would see it, that emerges on account of two features of the legislation. First, the use of the word "him" in the opening paragraph of section 17(2)(b), a reference to the earlier words in the same paragraph "the pursuer in the action", means that the court, in considering the issue of reasonable practicability, is required to take into account to some unspecified degree, the characteristics of that person. Second, the use of the word "his" in section 17(2)(b)(i) again requires the court to contemplate whether "the injuries in question were sufficiently serious to justify" the pursuer in the action "bringing an action of damages" on the specified assumptions. It is a matter of very great difficulty to discern to what extent it was contemplated by Parliament that the particular characteristics of an individual pursuer should be taken into account. However, in this connection, in my opinion, some guidance may be able to be derived from the provisions of section 17(3) of the 1973 Act. It requires that, in the computation of the period specified in subsection (2), there is to be disregarded any time during which the person who sustained the injuries was under legal disability by reason of non-age or "unsoundness of mind". It appears to me that "unsoundness of mind" having been made the subject of that express provision, it may be legitimate to infer that any mental condition falling short of "unsoundness of mind" would not be appropriate for consideration in the application of section 17(2)(b); otherwise these two provisions of the statute would appear to conflict.

[160] Turning to the provisions of section 14(1) and (2) of the 1980 Act, again it is apparent that an element of subjectivity is inherent in the legislation. The use in the opening words of section 14(1) of the word "he", a reference to the plaintiff, appears to inject subjectivity into the determination of the "date of knowledge ... of the person injured". Furthermore, the provisions of section 14(2), in which the words "the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings ... " appears to involve conferring upon the court an important element of discretion in the operation of the provision. Finally, when one comes to look at section 14(3) of the 1980 Act some element of subjectivity is involved.

[161] This examination of the two sets of legislative enactments may be sufficient to show that, as between the two jurisdictions, there are important differences as regards how the date from which time is to run is to be identified and also as to the extent to which the characteristics of the particular pursuer or plaintiff in question are to be taken into account. Against that background, I am firmly of the opinion that the use of cases decided in this area of the law in one jurisdiction as authorities in the other is most unwise and likely to lead to substantial confusion.

[162] In K.R. and Others v Bryn Alyn Community (Holdings) Limited and Another the Court of Appeal was concerned with the cases of 14 claimants in a consolidated action, who had all been in care as children in residential homes run by the first defendant. They sought damages in negligence against the first defendant on the basis that they had been physically and/or sexually abused by the first defendant's employees. Issues of limitation arose. In paragraphs 40 to 42 of the judgment of the court, delivered by Auld L.J. there are observations concerning the application of section 14 of the 1980 Act to the circumstances of those cases. It has to be said that much of what appears there seems to proceed upon the basis of knowledge which the court claimed to possess concerning the behaviour of claimants of the kind involved in that case, the origin of which appears to be obscure. For that reason and the reasons already expressed, concerning the two different sets of statutory provisions operating in the two jurisdictions, I am unable to affirm that what was said in that case represents the law of Scotland. Indeed, in reaching a conclusion on the issues before me in this part of the case, because of the differences between the two sets of statutory provisions, I do not think it appropriate to rely at all on English authorities. I note that in M.P. v Sister Zoe O'Neill and Others in paragraph [50], Lord Glennie adopted a similar view, with which I respectfully agree.

[163] In Carnegie v The Lord Advocate, the court had to consider a case in which the pursuer claimed to have been subjected to a regime of physical assaults and extortion during his early years in the army prior to 21 March 1992. In May 1992 he developed psychological injuries and in July 1992 he was discharged from the army. On 7 March 1995 a summons was signetted and served, in which the pursuer sought damages in respect of both the physical and psychological injuries. The court held that the claim based on physical injury from the assaults was time-barred, but that the psychological injuries developing in May 1992 were a separate or distinct injury subject to a separate triennium under section 17(2)(a) of the 1973 Act. Accordingly, a proof before answer was allowed under deletion of the averments relating to the alleged assaults outwith the triennium. In the course of delivering an Opinion, in which other members of the court concurred, Lord Johnston said in paragraph [20]:

"I take from that decision the recognition by his Lordship that for the purposes of the 1973 Act as amended a wholly distinct injury, albeit arising from the same delict, can be sued upon in a separate claim and therefore can create a separate triennium not starting from when there was original awareness of the original symptoms which are distinguishable but rather from when at the earliest the injury basing the action emerged to the knowledge of the pursuer."

In paragraph [18], he emphasised that for such a course to be followed,

"the later injuries must, of course, be distinct as, otherwise they will fall to be seen as a simple continuation or exacerbation of those which are time-barred."

During the course of the debate before us, it was not submitted that the decision in that case was unsound. Accordingly, I feel able to have regard to it in examining the averments made by the pursuer in this case. It is instructive to see how that approach was applied in a case which bore some similarity to the present action, B. v Murray. It was an action at the instance of a former care home inmate against a religious order, alleging ill-treatment during the pursuer's residence in the home between 1966 and 1976. The pursuer contended that she could rely on section 17(2)(b) of the 1973 Act, as she had not become aware of any entitlement to sue until newspaper articles appeared in the 1990s. She had raised the action within three years thereafter; in any event, she claimed that the psychological injury was wholly separate and specific from the original assaults and could found an action provided it was the only one being raised. The court held that the application of section 17(2)(b) was inappropriate; the pursuer had not made a distinct and separate claim in respect of her psychological problems within three years of them manifesting themselves. She had made a claim which went right back to the beginning covering everything that happened to her in respect of all of which she sought damages. Her own averments disclosed that at least at some stage during the home period she came to realise that what was happening to her and her fellow inmates was wrong and attributable to the defenders. In paragraph [8] of his judgment, Lord Johnston said:

"What however is conclusive to my mind in the present case is the pursuer does not make a distinct and separate claim as was done in Carnegie in respect of her psychological problems within three years of them manifesting themselves. She makes a claim going right back to a time in the home covering everything that happened to her and is seeking damages in respect of those elements."

Conclusion on limitation

[164] The starting point of a consideration of the impact of statutory limitation on the pursuer's case must be a recognition of the essential features of that case. So far as the first to eighth named defenders are concerned, it is based upon the allegations of wrongful conduct by members of the staff of St. Ninian's Approved School, for which these defenders are said to be responsible, during the period of the pursuer's residence there, which I have earlier narrated. He avers in Condescendence II that he was resident there "for about three years, from about 1963 to about 1966." So far as the case against the eighteenth named defender is concerned it is based upon alleged failures in duty to take certain action, which it is said, would have prevented the pursuer being subjected to that conduct. Once again, that case must be based on alleged failures taking place during the period of the pursuer's residence at the school. Thus any acts or omissions to which the appellant's injuries are said to be attributable must have ceased "about 1966".

[165] The pursuer was born on 15 September 1953. Accordingly he attained majority on 15 September 1971, the date on which he reached the age of 18 years, by then the age of majority. In terms of sections 17(2)(a) and 17(3) of the 1973 Act, any action arising out of the allegedly wrongful acts mentioned would have had to have been brought by 15th September 1974, within a period of three years after the appellant's attainment of majority. In fact the present action was commenced on 8 May 2000, nearly 26 years after the date when, prima facie, it became time-barred by the statutory provisions mentioned. It follows from these circumstances that, leaving aside the provisions of section 19A of the 1973 Act for a moment, if the action is to proceed, the pursuer requires, at this stage, to show that he has averred circumstances relevant for inquiry which could constitute a basis for his invocation of the provisions of section 17(2)(b) of the 1973 Act. Thus the question is whether that has been done.

[166] Leaving aside the complications consequent upon the decision in Carnegie v The Lord Advocate, what the pursuer requires to have done, in order to avoid the consequences of section 17(2) of the 1973 Act, is to aver that, at no time before 9 May 1997, was he aware, nor would it have been reasonably practicable for him in all the circumstances to have become aware, of all of the three statutory facts defined in section 17(2)(b) of the 1973 Act.

[167] I have, of course, given careful consideration to the averments which the pursuer has made, which might bear upon these matters, but I have reached the conclusion that the required averments have not been made. In Condescendences XI and XII in particular, the pursuer has, at some length, described the problems which he has experienced and which he attributes to the wrongful acts and omissions mentioned. However, in my view, those averments fail to focus upon the necessary matters, with which section 17(2)(b) is concerned. Furthermore, there are averments which would, without explanation, for which there is none, appear to contradict the case which the law requires the pursuer to make.

[168] By way of example, I would mention the following passages from his case. In Condescendence XI the pursuer avers that he was injured by the assaults perpetrated upon him, which treatment is said to have

"affected the pursuer's life ... The pursuer reacted to the assaults by determining that from then on he would retaliate against aggressors. The pursuer became involved in trouble with the police. He suffered regular periods of incarceration for violence. He became violent because of his anger at the abuse he suffered from Brother Benedict in particular. The pursuer was incarcerated on many occasions until about 1990."

These averments, in my view, suggest that, as a consequence of the serious assaults described by the pursuer, his life, at least until about 1990, had been driven by his determination that he would retaliate against aggressors. That suggests to me, first, a continuing awareness of the fact that he had been subjected to serious assaults and, second, a deliberate determination to adopt a particular approach to others motivated by that awareness.

[169] In Condescendence XII, it is averred that the pursuer "told his mother of the regime". He avers that

"he remembered many of the occasions of abuse at the school but put them to the back of his mind. He put the memories to the back of his mind as a way of coping with what had happened to him."

These averments indicate to me that the pursuer was aware at the time when the allegedly wrongful acts were committed of the facts of those acts. Furthermore, they suggest that he had a continuing recollection of many of the occasions of abuse, but decided to "put them to the back of his mind".

[170] It appears to me also that the averments made by the pursuer concerning the criminal incident in which he was involved in May 1996 are of importance. This resulted in him being charged and convicted of assault and breach of the peace in Alloa Sheriff Court. In connection with that matter, it is accepted that a Social Enquiry Report was prepared for the Sheriff Court. It referred to the fact that the pursuer and his brother had attended the approved school at Gartmore. The report continued:

"Mr. (McE) [i.e. the pursuer] described the bizarre and awesome punishment regime which he remembers as having been in force at the time. Mr. (McE) remained there for 3 years".

The pursuer avers that the words "bizarre and awesome punishment regime" were the words of the social worker who prepared the report and his own. He also avers that he told the social worker "of systematic abuse but the social worker was not interested." In my opinion, these averments clearly show that, prior to the disposal of the case in Alloa Sheriff Court on 30 September 1996, the pursuer had been well aware of the serious systematic abuse which he had suffered. I consider that the variety, nature and extent of the physical assaults and consequent injuries founded upon in this action are such that the pursuer cannot have been other than aware of their gravity, with the result that he must have had actual knowledge of all of the relevant matters long before 1999.

[171] I turn next to consider whether the pursuer's case can be brought within the principle acknowledged in Carnegie v The Lord Advocate. I have already made detailed reference to that case and to its sequel B. v Murray. It should perhaps be recorded that, in the latter case, a preliminary proof was allowed in relation to matters relevant to the application of section 19A of the 1973 Act, but, in that preliminary proof, the pursuer failed, as appears from B. v Murray (No. 2). In considering the possible application of the principle in Carnegie v The Lord Advocate to the circumstances of this case it is necessary to bear in mind the observations of Lord Johnston, in which the other judges involved in the decision concurred, at page 813 of the Report, already quoted. For the later injuries to avoid being time-barred, the fate of the earlier injuries, the later injuries must be wholly distinct from the earlier injuries, otherwise they will fall to be seen as a simple continuation or exacerbation of those which are time-barred. With that consideration in mind, it is necessary to see whether the pursuer, in the case which he has pled, has sought to and succeeded in availing himself of that principle, as a matter of relevancy. I have already quoted the averments made by him concerning the assaults said to have been perpetrated upon him at St. Ninian's School. These are specified, particularly in Condescendence III. In the light of the facts averred, I am quite unable to regard these assaults as trivial; it is plain that they can only properly be regarded as very serious assaults. It is only necessary to refer to what is said about the conduct of the sixteenth named defender who "regularly punched and kicked the pursuer on all parts of his body". Assaults of that description would frequently attract significant sentences of imprisonment. But there is averred, of course, a range of other seriously violent and wholly unacceptable conduct.

[172] Having regard to what is stated in Condescendence XI, it is quite plain that the pursuer seeks damages upon the basis of those assaults themselves, as a result of which he avers that he was injured. In addition to that, he, of course, makes a prominent feature of his claim for damages, the psychological injury which he claims to have suffered. In the same Condescendence he avers that he was depressed as a 12 year old. Furthermore, as appears from Condescendence XII he suffered psychological problems from time to time thereafter. For example he accepts that he was referred to and seen by the Community Mental Health Team in Clackmannan in June 1996. In short, no attempt has been made in pleading the pursuer's case to invoke the principle acknowledged in Carnegie v The Lord Advocate. The pursuer's present claim is based plainly upon both physical assaults and their psychological consequences, which are said to have emerged as early as when the appellant was only 12 years old. Thus, it is impossible to discern some distinct and separate basis of claim which emerged, as did the claim in Carnegie, within the triennium leading up to the raising of the action.

[173] In the debate before us, there was much reference to suppression of memory. Indeed that aspect of the case was regarded as sufficiently important by the pursuer's advisers that it was elaborated in the averments added to Condescendence XII at page 71 of the reclaiming print by the Minute of Amendment, No. 79 of process. I have already summarised the essence of those averments and the other averments in the case which refer to that subject. While I would acknowledge that those averments might well be pertinent to a case made under section 19A of the 1973 Act, as furnishing an explanation as to why proceedings had not been raised until a late stage, in relation to section 17 of the 1973 Act, the position is quite different, in my judgment. Before dealing with the significance or otherwise of these averments in that context, I am bound to observe that, in any event, the pursuer's own averments, in certain cases, contradict the contention that memory was suppressed. In that connection I refer again to the averment concerning the pursuer telling his mother of the regime at the school. Furthermore, the averments concerning what was said at the time of the preparation of the Social Enquiry Report in 1996 contradict the suggestion that memory was suppressed. However, leaving those matters aside, in my opinion, there are insuperable obstacles in the face of the pursuer in endeavouring to make this aspect of the case relevant to the application of section 17 of the 1973 Act. To the extent that section 17(2)(b) speaks of actual awareness, the legal significance of that awareness, in my view, simply cannot be affected by the suppression of memory, at least to the extent that it reflects an act of will. Plainly, it would be absurd if a claimant could avoid the consequences of section 17(2) by saying that he had put to the back of his mind his actual awareness of the statutory facts.

[174] If, however, suppression of memory were to be seen as, in some way, psychologically inevitable in the circumstances, then it is necessary to consider what significance, if any, that might have in the context of the provisions of section 17. As I see it, the issue has to be resolved in the light of the provisions of section 17(2)(b) relating to what might be called notional awareness, and also those of section 17(3). If it were the case that "it would have been reasonably practicable for him in all the circumstances to become aware of all the" statutory facts, then suppression of memory, in my opinion, would have no relevance.

[175] Section 17(3) of the 1973 Act specifically excludes from the computation of the period specified in subsection (2) any time during which the person who sustained the injuries "was under legal disability by reason of ... unsoundness of mind". Having regard to that provision in particular, I consider that the running of time cannot be interrupted by a mental condition short of unsoundness of mind. In particular, it cannot be interrupted by the development of suppressed or impaired memory or induced reticence. No averments have been made by the pursuer to the effect that, at any time during the relevant period of time he was suffering from "unsoundness of mind". In all these circumstances I cannot regard the particular chapter of the pursuer's averments which features suppressed memory as relevant to his case under section 17(2) of the 1973 Act.

Conclusion

[176] In summary, for all of the reasons given, my conclusion is that the pursuer has not averred a relevant case against any of the remaining defenders. Accordingly, his action must be dismissed. Had a relevant case been stated against any defender, I would have concluded that, on the acknowledged facts, such a case would have been barred by the provisions of section 17(2) of the 1973 Act, there being no relevant averments made under section 17(2)(b) of the Act to avoid that consequence.

The pursuer's case under section 19A of the 1973 Act

[177] Section 19A(1) of the 1973 Act provides:

"(1) Where a person would be entitled, but for any of the provisions of sections 17, 18, 18A or 18B of this Act, to bring an action, the court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision."

Since no final judgment has been pronounced in the present action, that subsection has effect in relation to it. It is evident from what is averred in Condescendence XII that the pursuer seeks to avail himself of the provisions of section 19A(1) of the 1973 Act. It is not wholly clear to me from his somewhat unfocused averments on what particular considerations he seeks to rely in this regard. Furthermore, it is not wholly clear to me that the averments which the pursuer has made provide an explanation for his failure to raise proceedings during the whole of the relevant period. However, I have in mind that the nature of the explanations advanced for the delay which has occurred is such that it might be unreasonable to impose on him, in connection with this matter, the same degree of specification as might reasonably be expected in cases of a different type. It is also, I think, an important consideration in this connection that the allegations of abuse relied upon here have already resulted in a criminal conviction. In all these circumstances, I have reached the view, with some hesitation, that, had the pursuer averred a legally relevant case against any of the remaining defenders, his case under section 19A of the 1973 Act could properly have been the subject of a preliminary proof before answer. However, in the light of the view that I have taken in relation to the relevance of the pursuer's case, that matter does not arise.

Disposal

[178] In all the circumstances, I move your Lordships to recall the interlocutor of the Lord Ordinary dated 13 September 2005, sustain the second plea-in-law for the first to eighth named defenders and the first plea-in-law for the eighteenth named defender, and dismiss the action so far as laid against those defenders.


EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Osborne

Lord Clarke

Lord Marnoch

[2007] CSIH 27

A1523/00

OPINION OF LORD CLARKE

in

RECLAIMING MOTION

in the cause

A. McE. (A.P.)

Pursuer and Respondent;

against

(FIRST) THE REVEREND JOSEPH HENDRON and OTHERS

Defenders and Reclaimers:

_______

Act: McEachran, Q.C., Miss Stirling; Drummond Miller, W.S. (for Ross Harper, Glasgow) (Pursuer and Respondent)

Alt: Clancy, Q.C., E.G. Mackenzie; Burness, W.S. (for McSparran & McCormick, Glasgow) (First to Eighth Defenders and Reclaimers)

Cullen, Q.C., Smith; Solicitor to the Scottish Executive (Eighteenth Defender and Reclaimer)

11 April 2007

[179] I am grateful to your Lordship in the chair for setting out comprehensively the history of these proceedings, the legislative provisions relating to the case, the relevant case law and the submissions made before the court, and I agree with your Lordship as to how the reclaiming motion should be disposed of.

[180] Having regard to the importance of the case I, myself, would wish to make the following observations.

[181] I agree entirely with your Lordship in the chair, and Lord Marnoch, that the learned Lord Ordinary seriously misdirected herself in addressing the merits of the cases as pled against both sets of remaining defenders. The Lord Ordinary, in my judgment, most importantly, failed to recognise, or appreciate, the significance of the role occupied by the managers, at the time of the conduct complained of by the pursuer in these proceedings, in relation to the List D school where the conduct was perpetrated. The Lord Ordinary, in my judgment, should have had firmly in her mind that, in cases like the present, where the defenders are not themselves the persons who perpetrated the conduct complained of, then if liability is to be visited upon them for the injuries or other consequences of such conduct, the pursuer, normally, will require to aver and prove that those defenders had a degree of authority, control or responsibility over the perpetrator in relation to the activity, which provided the context for the injurious conduct, at the time of its perpetration. When one has regard to the statutory functions of the managers of the school, at the relevant time, on the one hand, and the position of the first to eighth defenders and those persons in respect of whom the eighteenth defender is sued, on the other hand, it is abundantly clear that the managers were charged with the authority, control and responsibility, in respect of the day to day conduct of the teachers at the school, in relation to the care of the pupils, whereas such authority, control and responsibility did not lie with either the first to eighth defenders or those represented by the eighteenth defender. In my judgment the Lord Ordinary has singularly failed to face up to, or recognise, that situation and its consequences and, instead, has sought to construct possible bases of liability against both sets of these defenders which are simply unfounded.

[182] In the case of the first to eighth defenders the Lord Ordinary has, without there having been any case pled in that respect, sought to construct a case of vicarious liability based on agency against them. For the reasons given by your Lordship in the chair and Lord Marnoch, it appears to me that the factual averments upon which any such case might conceivably have been built, do not exist and, moreover, any such case is, in any event, inconsistent with the manager's statutory functions and duties.

[183] As regards the position of the eighteenth defender, it appears to me that the Lord Ordinary's approach to the matter is inconsistent with established principles of law. It involves, in my judgment, in the first place a misunderstanding of the case of Lister and secondly, it involves an illegitimate degree of judicial legislation. The proper analysis of the present case, it seems to me, should have involved the Lord Ordinary in deciding whether or not, standing the statutory functions that undoubtedly were rested upon those now represented by the eighteenth defender at the material time, those statutory functions conferred a private law cause of action against the eighteenth defender by the pursuer, following the guidance given by the House of Lords in the case of X (Minor) v Bedfordshire CC, as to how such questions should be addressed and answered. In that respect I consider the dictum of Lord Browne-Wilkinson at pages 731H-732A is entirely in point in relation to the statutory regime which existed in the present case. His Lordship said, at the passage just cited, the following:

"Although the question is one of statutory construction and therefore each case turns on the provisions in the relevant statute, it is significant that your Lordships were not referred to any case where it had been held that statutory provisions establishing a regulatory system or a scheme of social welfare for the benefit of the public at large had been held to give rise to a private right of action for damages for breach of statutory duty. Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general."

It seems to be that, having regard to the statutory responsibilities placed upon those represented by the eighteenth defender, as set out in full in the Opinion of your Lordship in the chair, those statutory provisions were passed for the benefit of society in general. The next question which, in my judgment, the Lord Ordinary should then have addressed was whether or not there could, nevertheless, co-exist with the statutory scheme, a common law duty of care. In that respect it appears to me that the following passages from the speech of Lord Browne-Wilkinson, in the case just cited, are of particular relevance. At page 735F-H his Lordship said this:

"It is clear that a common law duty of care may arise in the performance of statutory functions. But a broad distinction has to be drawn between: (a) cases in which it is alleged that the authority owes a duty of care in the manner in which it exercises a statutory discretion; and (b) cases in which a duty of care is alleged to arise from the manner in which the statutory duty has been implemented in practice.

An example of (a) in the educational field would be a decision whether or not to exercise a statutory discretion to close a school, being a decision which necessarily involves the exercise of a discretion. An example of (b) would be the actual running of a school pursuant to its statutory duties. In such latter case a common law duty to take reasonable care for the physical safety of the pupils will arise. The fact that the school is being run pursuant to a statutory duty is not necessarily incompatible with a common law duty of care arising from the proximate relationship between a school and the pupils it has agreed to accept. The distinction is between (a) taking care in exercising a statutory discretion whether or not to do an act and (b) having decided to do that act, taking care in the manner in which you do it."

That passage has to be read together with what his Lordship said later at page 762F-G:

"In my judgment, as in the child abuse cases, the court should hesitate long before imposing a common law duty of care in the exercise of discretionary powers or duties conferred by Parliament for social welfare purposes. The aim of the Act of 1981 was to provide, for the benefit of society as a whole, an administrative machinery to help one disadvantaged section of society. The statute provides its own detailed machinery for securing that the statutory purpose is performed. If, despite the complex machinery for consultation and appeals contained in the Act, the scheme fails to provide the benefit intended, that is a matter more appropriately remedied by way of the Ombudsman looking into the administrative failure than by way of litigation."

Reasoning similar to that contained in those passages, it seems to me, can be applied to the circumstances of the present case. Moreover, applying to the present case the standard three part framework used for deciding whether or not a common law duty of care arises, viz, was the damage reasonably foreseeable, was there sufficient proximity between the claimant and the defender and whether it was fair, just and reasonable to impose a duty of care (see Caparo Industries plc v Dickman [1990] 2 A.C. 605, 617-688), it seems the following can be said. While it might have been foreseeable that in the absence of care the pursuer might suffer injury (although I agree with counsel for the eighteenth defender that the specification of foreseeability against this defender is somewhat lacking) there was not the necessary proximity between him and those represented by the eighteenth defender in the sense of a measure of control over and responsibility for the potentially dangerous situation. It seems to me, in addition, that, having regard to the statutory functions of the managers, who were responsible for the day to day control over the activities of the teachers and the nature of the functions rested on those whom the eighteenth defender represents, which were clearly supervisory and discretionary in nature, it would not be just, fair and reasonable to impose a common law duty of care upon them.

[184] The circumstances of the present case are to be clearly distinguished from those in the case of Barrett v Enfield London Borough Council because in that case the children in question had been taken into the care of the local authority, in an exercise of its powers under the relevant legislation, and the local authority were then the custodians of the children. That is a very different situation from the present, where the complaint against the SED seems to be one of omission, viz, that they should have removed pupils, such as the pursuer, from the school or, indeed, should have effectively closed the school.

[185] It is, in my opinion, a remarkable feature of this case that it seems that the Lord Ordinary was unassisted by those representing the pursuers in the kind of analysis of the law which is found in the case of X v Bedfordshire CC. Be that as it may, the reasoning of the Lord Ordinary, at para.118 of her Opinion, under reference to policy considerations and the case of Lister is, in my judgment, seriously misconceived and does involve an element of judicial legislation. It seems to me that in the first place, throughout her Opinion, the Lord Ordinary has sought, without justification, to extend the scope of the decision in the case of Lister. That case was concerned with the question as to whether an employee's conduct was so closely connected with his employment that the employer should be vicariously liable for that conduct - see, for example, Lord Steyn at page 230 and Lord Clyde at page 231.

[186] The pursuer's counsel, in argument, before the court, relied strongly on some notion that "the state" should be held responsible for the kind of conduct forming the basis of the claim in this case. The argument, as it ran, seemed to me to involve an notion of strict liability being imposed on Government, (cf. the averment in Condescendence X D-E) the metes and bounds of which were never precisely defined, and which, in any event, is far removed, in my opinion, from the principles of common law negligence and damages for breach of statutory duty, upon which this claim is apparently based.

[187] As regards the question of limitation raised in this case, I gratefully adopt what Lord Marnoch has to say in relation to the application of section 17 of the 1973 Act. I agree with him that all the implications of the decision in the case of Carnegie might not have been clearly thought through and, for that reason, may benefit from a reconsideration in the future. I myself am satisfied that the legislature, in passing the provisions of the 1973 legislation, did not have in contemplation the kind of situation put forward in this case, involving repressed memory and the like, and that it is inappropriate to seek to stretch the statutory language beyond the sense it can bear, to seek to provide for some unforeseen case. If there is seen to be a problem in that respect, it is for the legislature to seek to solve it: compare what was said in Stubbings and Others v United Kingdom (1996) 23 EHRR 213 at para. 54. I am also entirely satisfied that both your Lordship in the chair and Lord Marnoch are correct to point to the inappropriateness of seeking to interpret the Scottish provisions by reference to the provisions of English legislation. That, in my judgment, simply invites the addition of confusion to what is already a difficult task.

[188] Lastly, I should add that, had it been necessary, I myself would have held that there were no sufficient facts and circumstances averred in this case to justify an exercise of the court's discretion under section 19A of the 1973 Act. I consider the reasoning of the Court of Appeal, in the case of Bryn Alyn, in relation to the application of section 33 of the Limitation Act 1980, to a case of this kind, to be compelling and that the averments made in the present case in support of the court exercising its discretion under section 19A are insufficient, standing the very considerable lapse of time and the nature of the case made. In a case such as the present, where the defenders are being sued in respect of criminal conduct, not of themselves, but of another person, I do not, with respect, share your Lordships' apparent view that the existence of a criminal conviction against that person makes such a difference as to entitle the pursuer to a preliminary proof before answer in relation to section 19A.


EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Osborne

Lord Clarke

Lord Marnoch

[2007] CSIH 27

A1523/00

OPINION OF LORD MARNOCH

in

RECLAIMING MOTION

in the cause

A. McE (A.P.)

Pursuer and Respondent;

against

(FIRST) THE REVEREND JOSEPH HENDRON and OTHERS

Defenders and Reclaimers:

_______

Act: McEachran, Q.C., Miss Stirling; Drummond Miller, W.S. (for Ross Harper, Glasgow) (Pursuer and Respondent)

Alt: Clancy, Q.C., E.G. Mackenzie; Burness, W.S. (for McSparran & McCormick, Glasgow) (First to Eighth Defenders and Reclaimers)

Cullen, Q.C., Smith; Solicitor to the Scottish Executive (Eighteenth Defender and Reclaimer)

11 April 2007

[189] In this reclaiming motion the pursuer, who was born on 15 September 1953, complains of injuries in the form of physical and psychological abuse sustained while he was a pupil in a List D school between about 1963 and about 1966. The physical abuse is of a serious nature and includes deliberate assaults by punching and kicking as well as force feeding of inter alia the pursuer's "own bodily fluids", being made to suck on bars of carbolic soap and being made to stand in a cold shower. The main perpetrator of the abuse complained of was convened as the sixteenth defender and decree in absence has passed against him. As it happens, he is currently in prison having been found guilty of criminal charges arising, or said to arise, out of the same alleged abuse. The action is no longer insisted in against the ninth to fifteenth defenders inclusive or against the seventeenth defender. The compearing parties are thus now restricted to the pursuer, the first to seventh defenders inclusive, who are each called as representing the Congregation or Order of De La Salle Brothers, the eighth defender, which is the Order itself, and the eighteenth defender who is the Lord Advocate as representing the statutory successors to the former Secretary of State for Scotland quoad his responsibility for Scottish education. Although the capacity of the first to seventh defenders to represent the Congregation or Order was not in issue, we were told that, as matter of fact, these defenders are the trustees of the Order. They and the eighth defender were jointly represented by Mr. Clancy, Q.C. and by Mr. E.G. Mackenzie, Advocate, who, before the Lord Ordinary, sought to have the action against their clients dismissed on grounds both of time-bar and irrelevancy. They failed on both counts and now reclaim against that adverse decision. I shall deal, first, with the matter of time-bar.

[190] The first issue under that head is whether the action, in so far as directed against the first to eighth defenders, is time-barred by virtue of section 17(2) of the Prescription and Limitation (Scotland) Act 1973. As to that, there was no dispute that when the action was raised on 8 May 2000, almost 30 years had elapsed since the pursuer's attainment of the age of majority in 1971. However, in an attempt to surmount that difficulty and bring himself within the terms of section 17(2)(b) of the 1973 Act the pursuer makes lengthy and what appear, at times, to be somewhat inconsistent or contradictory averments to the general effect that one of the consequences of the abuse complained of is to make the victim ashamed so that he either blanks out his memory in whole or in part or, at the least, becomes reticent about disclosing the occurrence of the abuse. Even if this general line of approach were open I am satisfied that the pleadings are seriously and essentially lacking in specification. There are various averments such as that, while presumably still detained, "The pursuer told his mother of the regime" and that, in relation to the preparation of a Social Enquiry Report in 1996, "The pursuer told the Social Worker of systematic abuse" which on the face of them are quite inconsistent with even a partial blanking out of memory. In any event, the suppression of memory, insofar as reflecting on act of will, would, it seems to me, be of no consequence. Much more fundamentally, however, I am of opinion that, if the pursuer as an adult once knew or could readily have ascertained the relevant facts, viz. those referred to in section 17(2)(b), there is no statutory basis to be found in either section 17(3) or any other part of the Act for the running of time to be further interrupted by either impaired memory or induced reticence. If that be right, then one would have to find in the pursuer's pleadings clear averments to the effect that at no time between his attainment of majority and the receipt of psychiatric assistance in 1999 was he aware or would it have been reasonably practicable for him to become aware of all of the relevant facts. I cannot find any such averments. On the contrary, there is every indication that in the interim he must have been well aware of the fact that he had sustained regular and serious physical abuse, and this is not a case where the pursuer seeks to separate out his psychological injuries as having distinctly manifested themselves at a later date. True it is that he claims not to have received psychiatric treatment until 1999 but that, in my opinion, is nothing to the point where he avers, as matter of fact, that the treatment he endured from the outset affected his whole life and personality (Closed Record p. 65C-E). In that respect the present case is readily distinguishable from Carnegie v Lord Advocate 2001 S.C. 802 and is much more akin to B v Murray 2004 S.L.T. 967.

[191] Counsel for the pursuer sought to derive some support from the decision of the Court of Appeal in K.R. and Others v Bryn Alyn Community Ltd. [2003] Q.B. 1441. That, however, was a case in which the claims of the successful appellants were regarded as being primarily claims in respect of psychiatric injuries and in which the decision in their favour depended on the court taking the view that until there was actual psychiatric intervention the appellants did not realise that their overall injuries were sufficiently serious to justify the raising of court proceedings. As I have already indicated, in the present case the variety, nature and extent of the physical assaults and injuries are such that the pursuer cannot have been other than aware of their gravity with the result that he must have had actual knowledge of all the relevant facts long before 1999. This is so, even making full allowance for the "partly subjective, partly objective" approach which it is now well recognised is necessary to a proper construction of section 17(2) of the Scottish Act and which appears also to be the approach of the English courts towards the corresponding English statute. In Catholic Care (Diocese of Leeds) & Anor. v Young [2006] E/W/C/A/ Civ. 1534, a recent decision of the Court of Appeal to which we were referred by Mr. McEachran, it is clear that this approach has its limitations even in its application to the delicate matter of assessing a claimant's response to long term psychiatric injuries arising out of childhood sexual abuse. No doubt such cases are, as was submitted, very "fact-sensitive". But, in my view, the same does not apply where the injuries in question are of a straight-forward physical nature, let alone where they are of the character and regularity averred in the present case. I am uncertain whether, short of alleged insanity, any averments could lay a sufficient foundation for attempting to explain away a failure to raise proceedings in respect of such injuries over a period of almost 30 years but, differing from the Lord Ordinary, I am in any event clear that the vague, imprecise and, at times, contradictory averments to which I have referred are quite insufficient for that purpose. In saying that, I do not of course overlook the general assertion contained in the averments added by amendment at page 71B of the Closed Record. It is, however, trite law that general assertions cannot be taken at their face value when at odds with other, more detailed, parts of the pursuer's pleadings or when fair notice is otherwise lacking.

[192] Before leaving the English authorities relied on by counsel for the pursuer it is right that I point out and emphasise that the statutory provisions considered in England (sections 11 and 14 of the Limitation Act 1980) are markedly different from those which obtain in Scotland and, most importantly, they are not applicable or, at least, not directly applicable to injuries caused deliberately which apparently fall under section 2 of the English statute.

[193] Reverting to the Scottish legislation, I have already indicated that for purposes of applying section 17(2) of the 1973 Act the psychiatric injuries in this case must be seen as contemporaneous with the physical injuries and thus as forming part of a single claim. Looked at from another angle, if the pursuer in the present case had raised an action timeously in respect of his physical injuries there is no reason to suppose that his advisers would have done other than include as part of the claim damages for all the psychological trauma and its effects. In this connection, however, I must take note of the obiter remarks of Lord Glennie in the recent case of M v O'Neill 2006 S.L.T. 823 [2006] CSOH 93 at paras. [27] -[30]. Lord Glennie there construes the phrase "injuries in question" where it appears in section 17(2)(b) of the 1973 Act as meaning the "injuries in issue in the proceedings" to the effect, it would seem, that separate trienniums might apply to different types of injury irrespective of whether or not these different types of injury manifested themselves at the same time or over the same period of time. In expressing that view he drew on certain observations of Sir Thomas Bingham M.R. in Dobbie v Medway Health Authority [1994] 1 W.L.R. 1235. As to these, I simply make the point that the Master of the Rolls' observations in that case were made in the context of a different statutory background, as discussed above, and one in which the wording said to be comparable is in fact expressed in the singular, "injury in question", as opposed to the plural in the 1973 Act. For the rest, I must respectfully disagree with Lord Glennie. In my opinion the phrase "injuries in question" where it appears in section 17(2)(b) is a reference back to the word "injuries" in section 17(2)(a) where it is clear that only one date for the running of a triennium is contemplated. Accordingly, where it is evident that under the provisions of section 17 an action in respect of certain personal injuries should have been raised within a given triennium, that same triennium will apply to all types of injury actually sustained at the same time or over the same period. The speciality thought to be present in Carnegie cit. sup. was that the psychiatric injuries were unexpected and did not develop or emerge, even in embryo, until a considerably later date with the result that they could not have been included in any earlier action. If, however, this leads to over fine distinctions being drawn (vide e.g. Hill v McAlpine 2004 S.L.T. 736) it may be that that decision should one day be reviewed by a larger court. I further recognise that in Carnegie the approach of the court, of which I was a member, did involve some measure of purposive construction of section 17 of the 1973 Act and that that is also an aspect of the decision which might usefully be re-visited. It is clearly not without significance that some disquiet over the decision has been expressed by both Lord Glennie in M v O'Neill and Lady Smith in the even more recent case of Jordan v Quarries [2006] CCOH 155.

[194] It remains only to note a subsidiary argument advanced by Mr. McEachran to the effect that the phrase "injuries in question", where it appears in section 17(2)(b), refers back not to "injuries" in section 17(2)(a) but to "personal injuries" in section 17(1) of the Act. From that standpoint he went on to submit that before a claim was time-barred under section 17(2)(b) a pursuer had to have actual or imputed knowledge of all three relevant facts in relation to each head of injury forming part of his claim. Having regard to the clear averment at page 78A of the Closed Record that was not the position in the present case, at least so far as the psychiatric injuries were concerned, until 1999.

[195] I have already expressed my opinion elsewhere as to what is grammatically the correct construction of section 17 with all that that entails. Insofar, however, as Mr. McEachran's submission goes further than Lord Glennie's obiter remarks in M v O'Neill, I have no hesitation in rejecting it. It would make little sense, as I see it, if an otherwise time-barred claim could be rescued from oblivion by the chance emergence many years later of perhaps quite minor psychiatric symptoms.

[196] For all the above reasons, therefore, I am of opinion that, insofar as based on section 17(2) of the Act, the present case, insofar as directed against these defenders, should on no view be remitted to probation.

[197] The second issue under this head was whether the pursuer's case against the first to eighth defenders should nonetheless be allowed to proceed by virtue of section 19A of the 1973 Act. Here the considerations are very different and, although I recognise that what appear to be conflicting factual averments make the timing and extent of the pursuer's alleged memory loss far from clear, I have reached the view with some hesitation that, having regard particularly to the averments at pps. 71-73 of the Closed Record, this is a matter which, if the action were otherwise held relevant, could properly be sent to proof before answer. In saying that I agree with the Lord Ordinary that the nature of the explanation advanced for the delay or delays which have occurred is such that it might be unreasonable to impose on this pursuer the same degree of specification as might be expected in cases of a different type. It is also, I think, an important consideration that the allegations of abuse in this case have already resulted in a criminal conviction.

[198] I now turn to the second ground of appeal which raises the more fundamental question of whether a relevant substantive case has in any event been pled against the Congregation or Order of De La Salle Brothers in the first instance.

[199] As counsel for these defenders pointed out, any such case would have to be based on the existence of some form of vicarious liability and the only basis for such liability averred on record was that of employer and employee. The problem about that, however, was that the pursuer himself averred that there was a separate body of "managers" in whom the school was vested and who were responsible for its running, including the employment of staff numbering, amongst others, the sixteenth defender and his brothers in religion. In any event, the statutory framework for the running of List D or approved schools such as that in which the pursuer was detained was to be found in the Children and Young Persons (Scotland) Act, 1937 and was clearly to that effect. In these circumstances it was hardly surprising that the Lord Ordinary had held that the case directed against the first to eighth defenders, in so far as based on employment, failed and that, said counsel, was, or should have been, an end of the matter. Since no other basis for liability was averred I, for my part, feel constrained to agree with that proposition.

[200] Somewhat surprisingly, however, the Lord Ordinary did not go on to dismiss the action against the first to eighth defenders. Instead, she conceived the possibility that the sixteenth defender and the other Brothers might be seen as having been acting as agents of the Order which might then be vicariously liable for their actings as their principal. She referred to a number of authorities in that connection. I do not myself find it necessary to enter on an examination of these authorities because, in my respectful opinion, the Lord Ordinary fundamentally misdirected herself in proceeding (at para 94 of her Opinion) on the hypothesis that

"the De La Salle order (sic) agreed to provide teaching, care and supervision services (my emphasis) for the children at St. Ninians."

Even if that were the position, there might, I think, be serious questions as to the nature and extent of any implied mandate or agency (viz. the ability to create legal relationships between the Order and third parties) and its consequences in terms of vicarious liability. But that, on averment, is, quite simply, not the position. On the contrary, for ought seen in the pleadings (or in the 1937 Act which is referred to in the pleadings), the Order did no more than simply put forward candidates for employment by the "managers", albeit on a charitable or unpaid basis. The Lord Ordinary placed much reliance on the case of Lister v Hesley Hall [2002] 1 A.C. 215 which vouchsafed the general proposition, as described by Lord Hobhouse at p. 241B,

"that, where the defendant has assumed a relationship to the plaintiff which carried with it a specific duty towards the plaintiff, the defendant is vicariously liable in tort if his servant, to whom the performance of that duty has been entrusted, breaches that duty".

In my opinion, however, the pursuer in this case has quite failed to aver the basis of any relationship as between the pursuer and the Order, let alone one carrying the implications referred to by Lord Hobhouse. If anyone incurred the sort of duty referred to by Lord Hobhouse, it would seem to me to be the "managers" of the school, as defined by section 110 of the 1937 Act, who alone, with the assistance of the headmaster, exercised immediate control over it.

[201] Counsel for the pursuer sought to adopt the approach of the Lord Ordinary and for the reasons given above I am against them in that submission. However, they went further and asserted that the Order in some way "operated" the school at a lower managerial level than the managers. Mr. McEachran, indeed, sought leave to amend by inserting at page 9D of the Closed Record the bare averment that, "The Order did operate said school at the material time." I, for my part, would reject that argument for the same reason the amendment was refused, namely that there is no hint either on Record or in the statutory regime of any secondary level of management such as that contended for. Such a contention, even if intelligible, seems to me to lack any proper foundation and to be based, at best, on speculation.

[202] For the foregoing reasons, which are not, I think, very different from those given by your Lordship in the chair, the substantive case purportedly pled against the first to eighth defenders is, in my opinion, wholly irrelevant and the action, in so far as directed against them, should be dismissed.

[203] So far as the case against the eighteenth defender is concerned, I respectfully agree that for the reasons given by your Lordship in the Chair and Lord Clarke it, likewise, should be dismissed. The eighteenth defender also tabled pleas anent time-bar and in that regard adopted all the arguments advanced on behalf of the first to eighth defenders. Had it been necessary to do so, I would have disposed of these pleas in precisely the same manner as that indicated above in relation to the first to eighth defenders.

[204] In the overall result I respectfully concur in the motion proposed by your Lordship in the chair.